An Act To Establish a Secure Internet-based Background Check Center for Providers of Long-tenn Care, Child Care and In-home and Community-based Services
Maine Legislature, Session 127, LD 1439
Committee Amendment CA_A_S274 (Senate)
Amends: 22 MRSA §1724, 22 MRSA §1812-J, 34-A MRSA §11221, 34-A MRSA §11281

COMMITTEE AMENDMENT" A" to S.P. 541, L.D. 1439, Bill, "An Act To 
Establish a Secure Internet-based Background Check Center for Providers of Long-tenn 
Care, Child Care and In-home and Community-based Services" 
Amend the bill in section 1 by striking out all of paragraph A-3 (page 1, lines 9 to 13 
in L.D.) and inserting the following: 
'A-3. 
"Direct care worker" means an individual who by virtue of employment 
generally provides to individuals direct contact assistance with personal care or 
activities of daily living or has direct access to provide care and services to clients, 
patients or residents regardless of setting. "Direct care worker" does not include a 
certified nursing assistant employed in that person's capacity as a certified nursing 
assistant.' 
Amend the bill by striking out all of section 8 and inserting the following: 
'Sec. 8. 22 MRSA §1724, first ~, as reallocated by RR 2009, c. 2, §49, is 
amended to read: 
Beginning October 1,2010, 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 
infonnation on that individual, including, at a minimum, criminal history record 
infonnation from the Department of Public Safety, State Bureau of Identification. A 
facility or provider subject to licensing under chapter 419 shall conduct a comprehensive 
background check for individuals employed in positions that have direct access to a 
consumer's property, personally identifiable information, [mancial information or 
resources in accordance with applicable federal and state laws. 
The comprehensive 
background check must be conducted in accordance with state law and rules adopted by 
the department. The facility or health care provider shall pay for the comprehensive or 
criminal background check required by this section as applicable.' 
COMMITTEE AMENDMENT 
I 
COMMITTEE AMENDMENT" A "to S.P. 541, L.D. 1439 
Amend the bill in section 9 in subsection 6 in the first line (page 2, line 36 in L.D.) by 
striking out the following: "Registry notations." and inserting the following: 'Prohibited 
employment based on disqualifying offenses.' 
Amend the bill in section 1 0 in subsection 6-A in paragraph A in the first 2 lines 
(page 3, lines 5 and 6 in L,D.) by striking out the following: 'shall secure and pay" and 
inserting the following: 'must secure or pay' 
Amend the bill in section 10 in subsection 6-A in paragraph A in subparagraph (1) in 
the 2nd line (page 3, line 12 in L.D.) by striking out the following: "shall notify" and 
inserting the following: 'must notify' 
Amend the bill by striking out all of section 14 (page 4, lines 18 to 23 in L.D.) and 
inserting the following: 
'Sec. 14. 22 MRSA §1812-J, sub-§I, ~ 
is enacted to read: 
F. "Direct care worker" means an individual who by virtue of employment generally 
provides to individuals direct contact assistance with personal care or activities of 
daily living or has direct access to provide care and services to clients. patients or 
residents regardless of setting. "Direct care worker" does not include a certified 
nursing assistant employed in that person's capacity as a certified nursing assistant.' 
Amend the bill in section 22 in subsection 4 in the 4th line (page 6, line 29 in L.D.) 
by striking out the following: "shall" and inserting the following: 'must' 
Amend the bill in section 25 in §9053 by adding at the end a new subsection to read: 
'35. Waiver. "Waiver" means an exemption granted by the department to a specific 
individual who is banned from employment as a direct access worker for a disgualifying 
offense.' 
Amend the bill in section 25 in §9054 in subsection 8 by striking out all of 
paragraphs F and G (page 13, lines 12 to 17 in L.D.) and inserting the following: 
'F. 
Specifying offenses. including offenses that may appear in publicly available 
criminal record information. that disqualify an individual from employment as a 
direct access worker. including, but not limited to. convictions and other events or 
notations: 
G. 
Coordinating with federal and state criminal justice agencies as required to 
facilitate a criminal record rap back monitoring program: and 
H. Providing for an independent process for a waiver based on a criminal conviction 
that gives an individual with a disqualifying offense who has been banned from 
employment pursuant to this chapter the opportunity to demonstrate that the ban 
should be waived because the individual does not pose a risk to patients. facilities. 
property or others.' 
Amend the bill in section 25 in §9054 by inserting after subsection 12 the following: 
'13. Waiver; disqualifying offense. In the event that no other federal or state law 
mandates an employment prohibition by an employer subject to this chapter. an 
individual who is banned from employment because of a disqualifying offense may 
initiate a request for a waiver under subsection 8. paragraph H in accordance with a 
COMMITTEE AMENDMENT 
I 
COMMITTEE AMENDMENT" A" to S.P. 541, L.D. 1439 
process established by rules adopted pursuant to this chapter under the following 
circumstances: 
A. 
The individual is seeking to be employed or is currently employed by an 
employer subject to the requirements of this chapter; 
B. The employer has chosen to sponsor the individual's request for the removal of 
the ban in order to create or maintain an employment relationship; and 
C. The employer must attest to the department that the decision to sponsor the 
waiver request occurred after the employer considered the objectively reasonable 
factors under subsection 15 and the following factors: 
(1) The nature and gravity of the disqualifying offense or offenses; 
(2) The time that has passed since the disqualifying offense or offenses; 
(3) The nature of the employment held or sought; 
(4) Whether the criminal conduct was employment-related; and 
(5) A reasonable conclusion that the individual does not pose a threat of harm to 
a protected individual or others in the care and support of the individual. 
The waiver must be sought with respect to the prospective or continued employment by a 
specific employer that is willing to sponsor the individual's request. 
An employee 
seeking a waiver may be conditionally employed in accordance with section 9057, 
subsection 4 and section 9058, subsection 3 until the waiver is denied. 
14. Approval of waiver. The department shall specify in rule the criteria for issuing 
a waiver for a disqualifying offense. 
The waiver determination is based on a 
consideration of the facts and circumstances of the specific individual's conviction that 
include the passage of time, extenuating circumstances, a demonstration of rehabilitation 
and the relevancy of the particular disqualifying offense with respect to the current or 
prospective employment with a sponsoring employer. All waivers are contingent on a 
final determination by the department that the employer has reasonably determined that 
the health and safety of a protected individual is not in jeopardy and a denial of a waiver 
request is not otherwise warranted in accordance with federal or state law. 
15. Waivers; factors. The department shall specify in rule the minimum factors that 
an employer must consider when sponsoring a waiver under subsection 13. Any factors 
that an employer chooses to consider must be obiectively reasonable in supporting the 
attestation that the individual to whom the waiver would apply is unlikely to cause harm 
to a protected individual or others in the employer's care. Obiectively reasonable factors 
include: 
A. The age of the individual applying for a waiver at the time of the disqualifying 
offense; 
B. The amount of time that has passed since the disqualifying offense occurred; 
C. The total number and type of disqualifying offenses; 
D. Any proven mitigating circumstances surrounding the disqualifying offense; 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" A "to S.P. 541, L.D. 1439 
E. 
Objective evidence that the individual has successfully completed a criminal 
rehabilitation program; 
F. The relevance of the circumstances pertaining to the disqualifying offense with 
respect to the nature of the proposed employment; 
G. The length and consistency of similar employment post-conviction if applicable; 
H. Whether the individual is bonded under federal or state law; and 
I. 
Personal references or recommendations from employers on behalf of the 
individual. 
16. Denial or revocation of waiver. The department shall establish by rule informal 
and formal review procedures for denial or revocation of a waiver. Denial or revocation 
of waiver procedures must comply with the Maine Administrative Procedures Act and 
final determinations may be appealed pursuant to the Maine Administrative Procedures 
Act in Title 5, Part 18, Chapter 375, subchapter 4. 
Rules concerning the denial or 
revocation of waiver procedures include, but are not limited to, the following: 
A. The process of filing a waiver request; 
B. The time frame for filing a waiver request; 
C. The time frame for issuing a waiver request decision; 
D. The rules for employment during the waiver request process; and 
E. 
A written determination stating the objectively reasonable factors under 
subsection 15 explaining the department's determination to grant, deny or revoke a 
waiver. 
Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A.' 
Amend the bill in section 25 in §9054 by renumbering the subsections to read 
consecutively. 
Amend the bill in section 25 in §9055 in subsection 1 in the 3rd line (page 14, line 37 
in L.D.) by striking out the following: "$55" and inserting the following: '$25' 
Amend the bill in section 25 in §9059 in subsection 1 in the last line (page 17, line 39 
in L.D.) by inserting after the following: "Center" the following: 'or who has not been 
granted a waiver as described in this chapter' 
Amend the bill in section 25 in §9059 in subsection 3 in the 4th line (page 18, line 9 
in L.D.) by inserting after the following: "employer" the following: 'or a failure to obtain 
or maintain a waiver' 
Amend the bill by inserting after section 25 the following: 
'Sec. 26. 34-A MRSA §11221, sub-§13, ~A, as enacted by PL 2011, c. 299, §3, 
is amended to read: 
A. Exeeflt as made available to the pealie taroegh the al:lfeoo's futemet weasite 
p'l:1fseant to seaseetiofl 9, the The bureau may not disseminate in electronic form 
information about a registrant that is created, collected or maintained in electronic 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" A "to S.P. 541, L.D. 1439 
form by or for the bureau, except as made available to the public through the bureau's 
Internet website pursuant to subsection 9 and made available to the Background 
Check Center established pursuant to Title 22, chapter 1691; and 
Sec. 27. 34-A MRSA §11281, sub-§12, ~A, as enacted by PL 2011, c. 663, §3, 
is amended to read: 
A. EKeept for illiormatioB provided pmSl:laBt to stiliseetioB 2 aBd made available to 
the ptililie tmot:lgh the bmeal:l's website pl:lrSl:laat to sl:lbseetioB 7, paragraph A, the 
The bureau may not disseminate in electronic form information about a registrant that 
is created, collected or maintained in electronic form by or for the bureau, except for 
the information provided pursuant to subsection 2 and made available to the public 
through the bureau's website pursuant to subsection 7, paragraph A and made 
available to the Background Check Center established pursuant to Title 22, chapter 
1691; and' 
Amend the bill by inserting after section 26 the following: 
'Sec. 27. Appropriations and allocations. The following appropriations and 
allocations are made. 
HEALTH AND HUMAN SERVICES, DEPARTMENT OF (FORMERLY DHS) 
Division of Licensing and Regulatory Services Z036 
Initiative: Provides funding for the criminal portion of background checks. 
OTHER SPECIAL REVENUE FUNDS 
All Other 
OTHER SPECIAL REVENUE FUNDS TOTAL 
2015-16 
$228,584 
$228,584 
2016-17 
$308,161 
$308,161 
Division of Licensing and Regulatory Services Z036 
Initiative: Provides funding for technology costs for additional background checks. 
OTHER SPECIAL REVENUE FUNDS 
All Other 
OTHER SPECIAL REVENUE FUNDS TOTAL 
Division of Licensing and Regulatory Services Z036 
2015-16 
$242,370 
$242,370 
2016-17 
$278,697 
$278,697 
Initiative: Provides funding for one Social Services Manager I position and 2 
Identification Specialist II positions to determine applicant employment eligibility and 
provide guidance and assistance to agencies and facilities. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" A "to S.P. 541, L.D. 1439 
OTHER SPECIAL REVENUE FUNDS 
POSITIONS - LEGISLATIVE COUNT 
Personal Services 
All Other 
OTHER SPECIAL REVENUE FUNDS TOTAL 
HEALTH AND HUMAN SERVICES, 
DEPARTMENT OF (FORMERLY DHS) 
DEPARTMENT TOTALS 
OTHER SPECIAL REVENUE FUNDS 
DEPARTMENT TOTAL-ALL FUNDS 
2015-16 
3.000 
$157,254 
$43,703 
$200,957 
2015-16 
$671,911 
$671,911 
2016-17 
3.000 
$216,681 
$56,628 
$273,309 
2016-17 
$860,167 
$860,167 
Amend the bill by relettering or renumbering any nonconsecutive Part letter or 
section number to read consecutively. 
SU~Y 
This amendment makes the following changes to the bill. 
1. It amends and standardizes the definition of "direct care worker." 
2. It clarifies that facilities or providers licensed under Title 22, chapter 419 are 
required to conduct a background check for individuals employed in positions that have 
direct access to a consumer's property, personally identifiable information, financial 
information or resources in accordance with federal and state laws. 
3. It requires a training program for certified nursing assistants or direct care workers 
either to pay for or secure a background check. 
4. It adds a process for an individual who has a disqualifYing offense to secure a 
waiver from the employment ban. 
5. It clarifies that information provided through the Maine Sex Offender Registry is 
available to the Background Check Center. 
6. It adds an appropriations and allocations section. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
i\pproved: 06/14/15 
~~~ 
LD 1439 
LR 551(02) 
An Act To Establish a Secure Internet-based Background Check Center for Providers of Long-term 
Care, Child Care and In-home and Community-based Services 
Fiscal Note for Bill as Amended by Committee Amendment 'W"(S-clILf) 
Committee: Health and Human Services 
Appropriations/Allocations 
Other Special Revenue Funds 
Revenue 
Other Special Revenue Funds 
Correctional and Judicial Impact Statements 
Increases the number of civil violations. 
Fiscal Note Required: Yes 
Fiscal Note 
FY 2015-16 
FY 2016-17 
$671,911 
$860,167 
$685,834 
$908,716 
Projections 
FY 2017-18 
$864,260 
$914,236 
The collection of additional fines may also increase General Fund revenue by minor amounts. 
Fiscal Detail and Notes 
Projections 
FY 2018-19 
$872,389 
$917,804 
The bill includes Other Special Revenue Funds allocations to the Department of Health and Human Services of 
$671,911 in fiscal year 2015-16 and $860,167 in fiscal year 2016-17 for one Social Services Manager I position and 2 
Identification Specialist II positions to detennine applicant employment eligibility, to provide guidance and assistance 
to agencies and facilities, to conduct the criminal portion of back ground checks and for technology costs for 
additional background checks. These allocations will be funded by an additional fee charged on each background 
check. 
LR0551(02) - Fiscal Note - Page 1 of 1