An Act To Update and Improve Maine's Laws Pertaining to the Rights of Persons with Intellectual Disabilities
Maine Legislature, Session 125, LD 1548
Committee: Health and Human Services
Sponsors: BRANNIGAN
Amends: 22 MRSA §8101, 34-B MRSA §5601, 34-B MRSA §5603, 34-B MRSA §5604, 34-B MRSA §5605, 34-B MRSA §5607, 34-B MRSA §5608

Legislative Document 
No. 1548 
S.P. 495 
In Senate, May 5, 2011 
An Act To Update and Improve Maine's Laws Pertaining to the 
Rights of Persons with Intellectual Disabilities 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by Senator BRANNIGAN of Cumberland. 
Be it enacted by the People of the State of Maine as follows: 
PART A 
Sec. A-1.  22 MRSA §8101, sub-§4, ¶E, as amended by PL 2007, c. 324, §13, is 
further amended to read: 
E.  A residential facility under Title 34-B, sections section 1431 and 5601. 
Sec. A-2.  34-B MRSA §5601, sub-§1-B is enacted to read: 
1-B.  Behavior management.  "Behavior management" means systematic strategies 
to prevent the occurrence of challenging behavior or to keep the person or others safe by 
reducing the factors that lead to challenging behavior or otherwise limiting the person's 
ability to engage in challenging behavior. 
Sec. A-3.  34-B MRSA §5601, sub-§1-C is enacted to read: 
1-C.  Behavior modification.  "Behavior modification" means teaching strategies, 
positive support and other interventions to support a person to learn alternatives to 
challenging behavior. 
Sec. A-4.  34-B MRSA §5601, sub-§2, as enacted by PL 1983, c. 459, §7 and 
amended by PL 2003, c. 689, Pt. B, §6, is repealed. 
Sec. A-5.  34-B MRSA §5601, sub-§5-A, as enacted by PL 1993, c. 326, §4, is 
amended to read: 
5-A.  Person receiving services.  "Person receiving services" means a person with 
mental retardation or autism receiving services from the bureau department or from an 
agency or facility licensed or funded to provide services to persons with mental 
retardation or autism except those presently serving sentences for crime. 
Sec. A-6.  34-B MRSA §5601, sub-§5-B is enacted to read: 
5-B.  Provider.  "Provider" means an entity, organization or individual providing 
services to an adult with mental retardation or autism, funded in whole or in part or 
licensed or certified by the department. 
Sec. A-7.  34-B MRSA §5601, sub-§6, as amended by PL 1993, c. 326, §5 and 
PL 2003, c. 689, Pt. B, §6, is repealed. 
Sec. A-8.  34-B MRSA §5601, sub-§6-A is enacted to read: 
6-A.  Restraint.  "Restraint" means a mechanism or action that limits or controls a 
person's voluntary movement, deprives a person of the use of all or part of the person's 
body or maintains a person in an area against the person's will by another person's 
physical presence or coercion.  "Restraint" does not include a prescribed therapeutic 
device or intervention or a safety device or practice. 
Sec. A-9.  34-B MRSA §5601, sub-§6-B is enacted to read: 
6-B.  Safety device or practice.  "Safety device or practice" means a device or 
practice that has the effect of reducing or inhibiting a person's movement in any way but 
whose purpose is to maintain or ensure the safety of the person.  "Safety device or 
practice" includes but is not limited to implements, garments, gates, barriers, locks or 
locking apparatuses, alarms, helmets, masks, gloves, straps, belts or protective gloves 
whose purpose is to maintain the safety of the person. 
Sec. A-10.  34-B MRSA §5601, sub-§7, as amended by PL 1993, c. 326, §5, is 
further amended to read: 
7.  Seclusion.  "Seclusion" means the solitary placement, involuntary confinement for 
any period of time of a person receiving services in a locked room for any period of time 
or specific area from which egress is denied by a locking mechanism or barrier. 
Sec. A-11.  34-B MRSA §5601, sub-§7-A, as enacted by PL 1993, c. 326, §6, is 
amended to read: 
7-A.  Supports.  "Supports" are those means actions or that assistance that permits 
empowers a person with mental retardation or autism to carry out life activities as the 
person desires, build relationships and learn the skills necessary to meet the person's 
needs and desires. 
Sec. A-12.  34-B MRSA §5601, sub-§7-B is enacted to read: 
7-B.  Therapeutic device or intervention.  "Therapeutic device or intervention" 
means an apparatus or activity prescribed by a qualified professional to achieve proper 
body position, balance or alignment or an action or apparatus that is designed to enhance 
sensory integration. 
Sec. A-13.  34-B MRSA §5601, sub-§8, as amended by PL 1993, c. 326, §7, is 
further amended to read: 
8.  Treatment.  "Treatment" means the prevention, or amelioration or cure of 
physical and mental disabilities or illness of a person receiving services or any actions or 
services designed to assist the person to maximize the person's independence and 
potential. 
Sec. A-14.  34-B MRSA §5603, as amended by PL 1993, c. 326, §8, is further 
amended to read: 
§5603.  Entitlement 
Each person with mental retardation or autism is entitled to the rights enjoyed by 
citizens of the State and of the United States, unless some of these rights have been 
limited or suspended as the result of court guardianship proceedings by a court of 
competent jurisdiction. 
1.  Person committed to the commissioner.  The rights and basic protections set out 
in section 5605 of a person with mental retardation or autism who is committed to the 
commissioner as not criminally responsible pursuant to Title 15, section 103 or as 
incompetent to stand trial pursuant to Title 15, section 101-D may be limited or 
suspended only if the commissioner submits to the applicable court a written treatment 
plan that specifies each limitation of a right or basic protection and the treatment plan has 
been approved by the court. 
Sec. A-15.  34-B MRSA §5604, sub-§2, as amended by PL 2007, c. 356, §23 and 
affected by §31, is further amended to read: 
2.  Independence and productivity.  Providing habilitation, education and other 
training to persons with mental retardation or autism that will maximize their each 
person's potential to lead an independent and productive lives life and that will afford 
opportunities for outward mobility from institutions full inclusion into the community 
where each person lives; and 
Sec. A-16.  34-B MRSA §5604, sub-§4, as enacted by PL 2007, c. 356, §23 and 
affected by §31, is repealed. 
Sec. A-17.  34-B MRSA §5604, as corrected by RR 2009, c. 1, §23, is amended 
by adding at the end 2 new paragraphs to read: 
The rights and basic protections of a person with mental retardation or autism under 
section 5605 may not be restricted or waived by that person's guardian, except as 
permitted by rules adopted pursuant to this section. 
The department has authority to adopt rules to implement this section.  Rules adopted 
pursuant to this paragraph are routine technical rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
Sec. A-18.  34-B MRSA §5605, sub-§3, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
3.  Communications.  A person with mental retardation or autism is entitled to 
private communications. 
A.  A person with mental retardation or autism is entitled to receive, send and mail 
sealed, unopened correspondence. A person who owns or is employed by a day 
facility or a residential facility is a provider may not delay, hold or censor any 
incoming or outgoing correspondence of any person with mental retardation or 
autism, nor may any such correspondence be opened without the consent of the 
person or the person's legal guardian. 
B.  A person with mental retardation or autism in a residential facility is entitled to 
reasonable opportunities for telephone and Internet communication. 
C.  A person with mental retardation or autism is entitled to an unrestricted right to 
visitations during reasonable hours, except that nothing in this provision may be 
construed to permit infringement upon others' rights to privacy unless this right has 
been restricted pursuant to rules adopted pursuant to section 5604. 
Sec. A-19.  34-B MRSA §5605, sub-§5, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
5.  Vote.  A person with mental retardation or autism may not be denied the right to 
vote for reasons of mental illness, as provided in the Constitution of Maine, Article II, 
Section 1, unless under guardianship. 
Sec. A-20.  34-B MRSA §5605, sub-§6, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
6.  Personal property.  A person with mental retardation or autism is entitled to the 
possession and use of that person's own clothing, personal effects and money, except that, 
when temporary custody of clothing or personal effects by a provider is necessary to 
protect the person or others from imminent injury, the chief administrator of a day facility 
or a residential facility may take temporary custody of clothing or personal effects, which 
the administrator shall immediately return when the emergency ends or unless this right 
has been restricted pursuant to rules adopted pursuant to section 5604. 
Sec. A-21.  34-B MRSA §5605, sub-§7, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
7.  Nutrition.  A person with mental retardation or autism in a residential facility is 
entitled to nutritious food in adequate quantities and meals may not be withheld for 
disciplinary reasons. 
Sec. A-22.  34-B MRSA §5605, sub-§8, ¶C, as amended by PL 1993, c. 326, §9, 
is further amended to read: 
C.  Daily notation of medication received by each person with mental retardation or 
autism in a residential facility must be kept in the records of the person with mental 
retardation or autism. 
Sec. A-23.  34-B MRSA §5605, sub-§8, ¶D, as amended by PL 1993, c. 326, §9, 
is further amended to read: 
D.    Periodically, but no less frequently than every 6 months, the drug regimen of 
each person with mental retardation or autism in a residential facility must be 
reviewed by the attending a physician or other appropriate monitoring body, 
consistent with appropriate standards of medical practice. 
Sec. A-24.  34-B MRSA §5605, sub-§8, ¶F, as amended by PL 1993, c. 326, §9, 
is repealed. 
Sec. A-25.  34-B MRSA §5605, sub-§10, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
10.  Social activity.  A person with mental retardation or autism is entitled to suitable 
opportunities for behavioral and leisure time activities that include social interaction in 
the community, as set out in section 5610.  This right may be waived or restricted only 
under the rules adopted pursuant to section 5604 or pursuant to a treatment plan approved 
pursuant to section 5603, subsection 1. 
Sec. A-26.  34-B MRSA §5605, sub-§12, as amended by PL 1993, c. 326, §9, is 
further amended to read: 
12.  Discipline.  Discipline of persons with mental retardation or autism is governed 
as follows. 
A.  The chief administrative officer of each facility shall prepare a written statement 
of policies and procedures for the control and discipline of persons receiving services 
that is directed to the goal of maximizing the growth and development of persons 
receiving services. 
(1)  Persons receiving services are entitled to participate, as appropriate, in the 
formulation of the policies and procedures. 
(2)  Copies of the statement of policies and procedures must be given to each 
person receiving services and, if the person has been adjudged incompetent, to 
that person's parent or legal guardian. 
(3)  Copies of the statement of policies and procedures must be posted in each 
residential and day facility. 
B.  Corporal punishment or any form of inhumane discipline is not permitted. 
C.  Seclusion as a form of discipline is not permitted. 
E.  A provider of residential services may establish house rules in a residential unit 
owned or operated by the provider.  A person receiving services who resides in the 
unit is entitled to participate, as appropriate, in the formulation of the house rules.  A 
house rule must be uniformly applied to all residents of the residential unit where the 
rules apply.  A copy of the house rules must be posted in a residential unit where the 
rules apply and a copy of the rules must be given to all residents who receive services 
and, if any resident is under guardianship, to the guardian of the person receiving 
services. 
Sec. A-27.  34-B MRSA §5605, sub-§13, as amended by PL 2007, c. 356, §25 
and affected by c. 695, Pt. D, §3, is further amended to read: 
13.  Behavioral support, modification and management.  Behavioral treatment 
Behavior modification and behavior management of and supports for a person with 
mental retardation or autism is are governed as follows. 
A.  A person with mental retardation or autism may not be subjected to a treatment 
behavior modification or behavior management program to eliminate dangerous or 
maladaptive behavior without first being examined assessed by a physician to rule 
out the possibility that the behavior is organically caused determine if the proposed 
program is medically contraindicated and that the dangerous or maladaptive behavior 
could not be better treated medically. 
A-1.  Behavioral treatment Support programs may contain both behavior 
modification and behavior management components.  Behavior modification 
components consist of interventions designed to assist a person with mental 
retardation or autism to learn to replace dangerous or maladaptive behavior with safer 
and more adaptive behavior.  Behavior management components consist of 
systematic strategies to prevent the occurrence of dangerous or maladaptive 
behaviors by minimizing or eliminating environmental or other factors that cause 
those behaviors. 
A-2.  The following practices are prohibited as elements of behavior modification or 
behavior management programs: 
(1)  Seclusion; 
(2)  Corporal punishment; 
(3)  Actions or language intended to humble, dehumanize or degrade the person; 
(4)  Restraints that do not conform to rules adopted pursuant to this section; 
(5)  Totally enclosed cribs or beds; and 
(6)  Painful stimuli. 
B.  Treatment Behavior modification and behavior management 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 than the program and only: 
(1)  On the recommendation of a physician, psychiatrist or psychologist the 
person's personal planning team; 
(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 designated by the Office of Adults with Cognitive 
and Physical Disabilities Disability Services; and a representative of designated 
by the 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 defined in Title 5, 
chapter 375, subchapter 2-A. 
C.  Notwithstanding paragraph B, for a child under 18 years of age, treatment 
programs involving the use of seclusion or any noxious or painful stimuli, as defined 
in department rules, may not be approved. 
Sec. A-28.  34-B MRSA §5605, sub-§14-A, as enacted by PL 2007, c. 573, §2, is 
amended to read: 
14-A.  Restraints.  A person with mental retardation or autism is entitled to be free 
from a physical restraint unless: 
A.  The physical restraint is a short-term step to protect the person from imminent 
injury to that person or others; or 
B.  The physical restraint has been approved as a behavioral treatment behavior 
management program in accordance with this section. 
A physical restraint may not be used as punishment, for the convenience of the staff or as 
a substitute for habilitative services.  A physical restraint may impose only the least 
possible restriction consistent with its purpose and must be removed as soon as the threat 
of imminent injury ends.  A physical restraint may not cause physical injury to the person 
receiving services and must be designed to allow the greatest possible comfort and safety.  
The use of totally enclosed cribs and barred enclosures is prohibited in all circumstances. 
Daily records of the use of physical restraints identified in paragraph A must be kept, 
which may be accomplished by meeting reportable event requirements. 
Daily records of the use of physical restraints identified in paragraph B must be kept, and 
a summary of the daily records pertaining to the person must be made available for 
review by the person's planning team, as defined in section 5461, subsection 8-C, on a 
schedule determined by the team.  The review by the personal planning team may occur 
no less frequently than quarterly.  The summary of the daily records must state the type of 
physical restraint used, the duration of the use and the reasons for the use.  A monthly 
summary of all daily records pertaining to all persons must be relayed to the Office of 
Advocacy. 
Sec. A-29.  34-B MRSA §5605, sub-§14-B, as enacted by PL 2007, c. 573, §3, is 
repealed. 
Sec. A-30.  34-B MRSA §5605, sub-§14-C, as enacted by PL 2007, c. 573, §4, is 
repealed. 
Sec. A-31.  34-B MRSA §5605, sub-§15, ¶B, as amended by PL 1987, c. 769, 
Pt. A, §129, is further amended to read: 
B.  The commissioner is entitled to have access to the records of a day facility or a 
residential facility provider if necessary to carry out the statutory functions of the 
commissioner's office. 
Sec. A-32.  34-B MRSA §5605, sub-§16 is enacted to read: 
16.  Therapeutic devices or interventions.  Therapeutic devices or interventions 
must be prescriptively designed by a qualified professional and applied with concern for 
principles of good body alignment and circulation and allowance for change of position.  
The department may adopt rules concerning the use of therapeutic devices or 
interventions.  Rules adopted pursuant to this subsection are routine technical rules as 
defined in Title 5, chapter 375, subchapter 2-A. 
Sec. A-33.  34-B MRSA §5605, sub-§17 is enacted to read: 
17.  Safety devices and practices.  A safety device or practice must be prescribed by 
a physician.  A safety device must be designed and applied with concern for principles of 
good body alignment and circulation and allowance for change of position.  The 
department may adopt rules concerning the use and approval of safety devices or 
practices.  Rules adopted pursuant to this subsection are routine technical rules as defined 
in Title 5, chapter 375, subchapter 2-A. 
Sec. A-34.  34-B MRSA §5605, as amended by PL 2009, c. 100, §1, is further 
amended by adding at the end a new paragraph to read: 
The department may adopt rules as necessary to implement this section.  Rules 
adopted pursuant to this paragraph are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A. 
Sec. A-35.  34-B MRSA §5607, sub-§2, as amended by PL 1993, c. 326, §11, is 
further amended to read: 
2.  Posting requirement.  A copy of this subchapter must be posted in by each 
residential and day facility provider. 
Sec. A-36.  34-B MRSA §5608, as amended by PL 1993, c. 326, §12 and c. 410, 
Pt. CCC, §42, is further amended to read: 
§5608.  Residential council 
Upon request of a person receiving services, the chief administrative officer of a 
residential facility provider shall initiate and develop offer an opportunity to a person 
receiving services from the provider to organize a program of government residential 
council to hear the views and represent the interests of all persons receiving services at 
from the facility provider. 
1.  Composition.  The government residential council of the persons receiving 
services must be composed of residents elected by other residents and staff advisors 
skilled in the administration of community organizations.  The residential council may 
include allies elected by the residents. 
2.  Duties.  The government of the persons receiving services residential council shall 
work closely with the division Office of Adults with Cognitive and Physical Disability 
Services and the Office of Advocacy to promote the interests and welfare of all residents 
in the facility persons receiving services from the provider. 
PART B 
Sec. B-1.  Develop recommendations for changes in statutory language.  
The Department of Health and Human Services and the Maine Developmental 
Disabilities Council, with the assistance of the Revisor of Statutes, shall review the Maine 
Revised Statutes to identify those sections that use the term "mental retardation" or the 
term "mentally retarded" and develop recommendations for removal of the terms or 
substitutions of language that reflect the recommendations of the respectful language 
working group in the report submitted by the Maine Developmental Disabilities Council 
to the Joint Standing Committee on Health and Human Services pursuant to Resolve 
2007, chapter 62. The department and the council shall invite the participation of the 
Disability Rights Center in the development of those recommendations. 
Sec. B-2.  Report and recommendations.  By December 7, 2011, the 
Department of Health and Human Services and the Maine Developmental Disabilities 
Council shall submit a report, including proposed legislation, to the Joint Standing 
Committee on Health and Human Services regarding recommended changes for the 
Maine Revised Statutes. 
Sec. B-3.  Authority for legislation.  After receipt and review of the 
recommendations submitted pursuant to section 2, the Joint Standing Committee on 
Health and Human Services may submit legislation to the Second Regular Session of the 
125th Legislature to implement the recommendations. 
SUMMARY 
This bill amends the laws regarding the rights of persons with intellectual disabilities.  
It provides a legal mechanism for Maine courts to limit a person's rights if the person is 
found not competent to stand trial or not guilty by reason of mental incapacity.  It permits 
the Department of Health and Human Services to adopt routine technical rules that clarify 
when a guardian may limit, waive or restrict a person's rights and basic protections.  It 
permits persons receiving services to organize residential councils to enhance 
communication between providers and residents.  It clarifies the use of the terms 
"restraint" and "seclusion." 
The bill also directs the Department of Health and Human Services and the Maine 
Developmental Disabilities Council, with the participation of the Disability Rights Center 
and the assistance of the Revisor of Statutes, to review the Maine Revised Statutes and 
identify the sections that use the terms "mental retardation" and "mentally retarded" and 
report recommendations for changes, including proposed legislation, to the Joint Standing 
Committee on Health and Human Services.  The bill authorizes the committee to submit 
legislation to the Second Regular Session of the 125th Legislature based on these 
recommendations.