An Act To Make Statutory Changes To Address Certain Conflicting Requirements of the Maine Rules of Professional Conduct and the Federal Developmental Disabilities Assistance and Bill of Rights Act of 2000 Regarding Maine's Protection and Advocacy Agency
Maine Legislature, Session 126, LD 1249
Committee: Judiciary
Sponsors: PRIEST, VALENTINO, BEAULIEU, CROCKETT, MONAGHAN-DERRIG, MOONEN, MORIARTY, VILLA, TUTTLE
Amends: 34-B MRSA §1223, 34-B MRSA §5005-A, 34-B MRSA §5470-B, 34-B MRSA §5605, 34-B MRSA §5606, 34-B MRSA §5611

Legislative Document 
No. 1249 
H.P. 883 
House of Representatives, March 27, 2013 
An Act To Make Statutory Changes To Address Certain Conflicting 
Requirements of the Maine Rules of Professional Conduct and the 
Federal Developmental Disabilities Assistance and Bill of Rights Act 
of 2000 Regarding Maine's Protection and Advocacy Agency 
Reference to the Committee on Judiciary suggested and ordered printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative PRIEST of Brunswick. 
Cosponsored by Senator VALENTINO of York and 
Representatives: BEAULIEU of Auburn, CROCKETT of Bethel, DeCHANT of Bath, 
MONAGHAN-DERRIG of Cape Elizabeth, MOONEN of Portland, MORIARTY of 
Cumberland, VILLA of Harrison, Senator: TUTTLE of York. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  34-B MRSA §1223, sub-§10, as amended by PL 2011, c. 657, Pt. EE, §3, 
is further amended to read: 
10.  Access to information.  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 intellectual disabilities 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 intellectual disabilities or 
autism, including reports developed by or on behalf of the department and reports 
prepared by others about the department. 
B.  The advocacy agency designated pursuant to Title 5, section 19502, or 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 an alleged dehumanizing practice or violation of rights of a person with 
intellectual disabilities 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 request and review reports of actions taken by an entity to which a 
referral is made under subsection 9, paragraph F. 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. 
Sec. 2.  34-B MRSA §5005-A, sub-§2, as enacted by PL 2011, c. 657, Pt. EE, §5, 
is amended to read: 
2.  Duties.  The department shall contract with the agency to: perform the following 
duties in at least 5 regions. 
A.  Receive The agency shall receive complaints made by or on behalf of individuals 
with intellectual disabilities or autism and represent their interests in any matter 
pertaining to their rights and dignity;. 
B.  Investigate The agency shall investigate the claims, grievances and allegations of 
violations of the rights of individuals with intellectual disabilities or autism;. 
C.  Intercede on behalf The agency may pursue legal, administrative and other 
appropriate remedies or approaches to ensure the protection of, and advocacy for, the 
rights of individuals with intellectual disabilities or autism with officials of any 
provider of service who are or may be eligible for services administered, licensed or 
funded by the department, except that the agency may refuse to take action on any 
complaint that it considers to be trivial, to be moot or moot to lack merit or for which 
there is clearly another remedy available;. 
D.  Assist individuals with intellectual disabilities or autism in any hearing or 
grievance proceeding pertaining to their rights and dignity; 
E.  Refer The agency may refer individuals with intellectual disabilities 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 The agency shall act as an information source regarding the rights of all 
individuals with intellectual disabilities 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 fields of mental health, intellectual disabilities and 
autism, both in this State and in other parts of the country; and. 
G.  Make The agency may make and publish reports necessary to the performance of 
the duties described in this section.  The agency may report its findings to groups 
outside the department, such as legislative bodies, advisory committees, 
commissions, law enforcement agencies and the press.  At least annually, the agency 
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. 
H.  The agency may monitor the delivery of services, supports and other assistance or 
residential services or treatment provided to persons with intellectual disabilities or 
autism for the purpose of ensuring that services, supports and assistance meet the 
needs of those persons and are delivered in conformity with laws, regulations, rules 
and other standards regarding quality of care. 
Sec. 3.  34-B MRSA §5005-A, sub-§4, as enacted by PL 2011, c. 657, Pt. EE, §5, 
is amended to read: 
4.  Access to files and records.  The agency has access, limited only by the civil 
service law, to the files, records and personnel of any provider of services, including the 
files and records of any person with an intellectual disability or autism held by any 
provider of service, administered, licensed or funded by the department and to all reports 
and related documents submitted pursuant to section 5604-A. 
Sec. 4.  34-B MRSA §5005-A, sub-§4-A is enacted to read: 
4-A.  Access to individuals.  The agency has access to individuals pursuant to Title 
5, section 19506.  
Sec. 5.  34-B MRSA §5005-A, sub-§5, as enacted by PL 2011, c. 657, Pt. EE, §5, 
is amended to read: 
5.  Confidentiality.  Requests for The following provisions govern confidentiality are 
treated as follows. 
A.  Any request by or on behalf of an individual with intellectual disabilities or 
autism for action by the agency 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. 
C.  Records maintained by the agency are the sole property of the individual with 
intellectual disabilities or autism to whom the records pertain and the agency shall 
protect the records from loss, damage, tampering or use by unauthorized individuals.  
The agency shall keep the records confidential and may not release them without 
written consent from the individual with intellectual disabilities or autism or the 
individual's guardian. 
Sec. 6.  34-B MRSA §5470-B, sub-§7, ¶B, as amended by PL 2011, c. 657, Pt. 
EE, §6, is repealed. 
Sec. 7.  34-B MRSA §5605, sub-§13, ¶B, as amended by PL 2011, c. 657, Pt. 
EE, §9, is further amended to read: 
B.  Behavior modification and behavior management programs may be used only to 
correct behavior more harmful to the person than the program and only: 
(1)  On the recommendation of 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 a representative from the department, 
a representative from the advocacy agency designated pursuant to Title 5, section 
19502 and a representative designated by the Maine Developmental Services 
Oversight and Advisory Board. The advocacy agency representative serves as a 
nonvoting member of the review team and shall be present to advocate on behalf 
of the person. The department shall provide sufficient advance notice of all 
scheduled review team meetings to the advocacy agency and provide the 
advocacy agency with any plans for which approval is sought along with any 
supporting documentation; 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 a representative from the advocacy 
agency designated pursuant to Title 5, section 19502, a team leader of the 
department's children's services division and the children's services medical 
director or the director's designee.  The advocacy agency representative serves as 
a nonvoting member of the review team and shall be present to advocate on 
behalf of the person.  The department shall provide sufficient advance notice of 
all scheduled review team meetings to the advocacy agency and provide the 
advocacy agency with any plans for which approval is sought along with any 
supporting documentation.  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. 
Sec. 8.  34-B MRSA §5606, sub-§1, as amended by PL 2011, c. 657, Pt. EE, §11, 
is further amended to read: 
1.  Reportable events.  Any alleged violation of the rights of a person receiving 
services must be reported immediately to the advocacy agency designated pursuant to 
Title 5, section 19502, referred to in this subsection as "the agency," and to the Attorney 
General's office. 
A.  The agency shall conduct an investigation of investigate each alleged violation 
pursuant to section 5005-A. 
B.  The agency shall submit a written report of the findings and results of the 
investigation to the chief administrative officer of the facility in which the rights of 
the person receiving services were allegedly violated and to the commissioner within 
working days after the day of the occurrence or discovery of the alleged incident 
may independently pursue a complaint or may pursue administrative, legal and other 
appropriate remedies on behalf of an individual with intellectual disabilities or 
autism.  The agency may refuse to take action on any alleged violation that it 
considers to be trivial, to be moot or to lack merit or for which there is clearly another 
remedy available or may refer an individual who is the subject of an alleged violation 
to another agency or entity and collaborate with that agency or entity for the purpose 
of advocating for the rights and dignity of that individual. 
Sec. 9.  34-B MRSA §5611 is enacted to read: 
§5611.  Complaints 
A complaint may be filed by the agency designated pursuant to Title 5, section 
19502.  The complaint procedure may be used when the agency knows or has reason to 
believe that the practices, procedures or policies of the department or of any agency 
licensed, funded or contracted by the department to provide services violate the rights of 
individuals with intellectual disabilities or autism pursuant to section 5605. 
1.  Allegations of employee misconduct.  A complaint that includes allegations of 
employee misconduct must be processed, but no disciplinary action may be taken nor 
facts found with regard to the alleged misconduct except in accordance with applicable 
personnel rules, policies and labor contract provisions. 
2.  Complaints arising in community.  A complaint arising in the community must 
be addressed to the executive director of the provider agency, and a complaint concerning 
department personnel must be addressed to the regional manager. 
3.  Response to be provided within 5 business days.  A formal written response, 
including a statement of the remedial action to be taken, if any, must be provided to the 
complainant within 5 business days of receipt by the person listed in subsection 2. 
4.  Decision appealable to director.  A decision described in subsection 3 is 
appealable within 5 business days to the director of the department's office of aging and 
disability services or the director's designee, who shall provide a formal written response, 
including a statement of the remedial action to be taken, if any, to the complainant within 
business days. 
5.  Decision appealable to commissioner.  A decision of the director or the director's 
designee pursuant to subsection 4 is appealable within 5 business days to the 
commissioner, who shall provide a formal written response, including a statement of the 
remedial action to be taken, if any, to the complainant within 5 business days. This 
written response constitutes the department's final agency action on the matter. 
SUMMARY 
In the 125th Legislature, the Maine Revised Statutes, Title 34-B was amended by 
Public Law 2011, chapter 657, Part EE to require that the Department of Health and 
Human Services contract with Maine's protection and advocacy agency to provide legal 
advocacy for all individuals with intellectual disabilities or autism receiving services 
from the department.  This bill conforms the laws concerning persons with intellectual 
disabilities or autism with the Maine Rules of Professional Conduct and the federal 
Developmental Disabilities Assistance and Bill of Rights Act of 2000, Public Law 
106-402 by requiring that the agency maintain the confidentiality of client records and 
changing the role of the agency in investigating rights violations and in behavior 
modification and management review committees.