An Act Regarding the Employment of Certified Nursing Assistants and Direct Care Workers
Maine Legislature, Session 127, LD 1316
Committee: Health and Human Services
Sponsors: FOWLE, GERZOFSKY, BRYANT, DOORE, LAJOIE, STUCKEY, VACHON, WARREN
Amends: 22 MRSA §1717, 22 MRSA §1812-G, 22 MRSA §1812-J, 22 MRSA §2131, 22 MRSA §2138, 22 MRSA §2138-A, 22 MRSA §2149-A, 22 MRSA §7851, 22 MRSA §8606, 22 MRSA §8607, 22 MRSA §9005

Legislative Document 
No. 1316 
H.P. 894 
House of Representatives, April 14, 2015 
An Act Regarding the Employment of Certified Nursing Assistants 
and Direct Care Workers 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative FOWLE of Vassalboro. 
Cosponsored by Senator GERZOFSKY of Cumberland and 
Representatives: BRYANT of Windham, DOORE of Augusta, LAJOIE of Lewiston, 
McELWEE of Caribou, STUCKEY of Portland, VACHON of Scarborough, WARREN of 
Hallowell. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  22 MRSA §1717, sub-§1, ¶C, as amended by PL 2007, c. 324, §2, is 
further amended to read: 
C.  "Personal care agency" means a business entity or subsidiary of a business entity 
that is not otherwise licensed by the Division of Licensing and Regulatory Services 
and that hires and employs an unlicensed assistive personnel person to provide 
assistance with activities of daily living and related tasks to individuals in the places 
in which they reside, either permanently or temporarily.  An individual who hires and 
employs an unlicensed assistive personnel person to provide care for that individual 
is not a personal care agency, except when permitted by rule of the department. 
Sec. 2.  22 MRSA §1717, sub-§1, ¶D, as amended by PL 2007, c. 324, §2, is 
further amended to read: 
D.  "Unlicensed assistive personnel person" or "direct care worker" means individuals 
an individual employed to provide hands-on assistance with activities of daily living 
or other services to individuals in private homes, assisted living centers programs, 
residential care facilities, hospitals and other health care and direct care settings.  
"Unlicensed assistive person" and "direct care worker" include but are 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 personnel person" does and 
"direct care worker" do not include a certified nursing assistants assistant employed 
in their the capacity as of a certified nursing assistants assistant. 
Sec. 3.  22 MRSA §1717, sub-§3, as amended by PL 2011, c. 257, §1, is repealed. 
Sec. 4.  22 MRSA §1717, sub-§§3-A and 3-B are enacted to read: 
3-A.  Prohibited employment.  A personal care agency or a placement agency may 
not hire or place an individual who: 
A.  While working as a certified nursing assistant, was the subject of a complaint 
investigation by the state survey agency that resulted in a substantiated complaint that 
was placed as a notation on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers under section 1812-G; 
B.  While working as an unlicensed assistive person, was the subject of a complaint 
investigation by the department that resulted in a substantiated finding that was 
placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G; 
C.  While working as a certified nursing assistant, received a disqualifying criminal 
conviction that was placed as a notation on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G; or 
D.  Has a disqualifying criminal conviction as determined pursuant to section 
1812-G, subsection 2-D. 
3-B.  Employer criminal background checks prior to hiring.  Prior to hiring an 
individual who will work in direct contact with a consumer, a personal care agency or a 
placement agency shall obtain 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 personal care agency or the placement 
agency shall pay for the criminal background check required by this subsection. 
A.  A personal care agency or a placement agency may not employ an individual with 
a disqualifying criminal conviction on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G to work in direct contact 
with a consumer. 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise 
be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not 
banned for that conduct if the certified nursing assistant or unlicensed assistive 
person was employed as a certified nursing assistant or unlicensed assistive person on 
the effective date of this paragraph and the conduct occurred prior to the effective 
date as long as the certified nursing assistant or unlicensed assistive person continues 
to work for the same employer at the same facility or program.  When there is a 
change of employer or employment at a specific facility or program, the certified 
nursing assistant or unlicensed assistive person is subject to this subsection. 
Sec. 5.  22 MRSA §1717, sub-§4, ¶B, as amended by PL 2007, c. 324, §2, is 
further amended to read: 
B.  A person who operates a personal care agency or placement agency in violation of 
the employment prohibitions in subsection 3 3-A commits a civil violation for which 
a fine of not less than $500 per day of operation in violation but not more than 
$10,000 per day may be adjudged, beginning on the first day that a violation occurs.  
Each day of violation constitutes a separate offense. 
Sec. 6.  22 MRSA §1812-G, as amended by PL 2011, c. 257, §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. 
A-1.  "Abuse" means the willful infliction of injury, unreasonable confinement, 
intimidation or punishment with resulting physical harm, pain or mental anguish. 
A-2.  "Criminal conviction" means a disqualifying criminal conviction and a 
nondisqualifying criminal conviction. 
A-3.  "Disqualifying criminal conviction" means a criminal conviction that prohibits 
employment as a certified nursing assistant or an unlicensed assistive person. 
A-4.  "Health and direct care setting" means a setting in which a certified nursing 
assistant or unlicensed assistive person is providing direct care in the capacity of a 
certified nursing assistant or unlicensed assistive person. 
A-5.  "Misappropriation of property" means the deliberate misplacement, exploitation 
or wrongful temporary or permanent use of a client's, patient's or resident's 
belongings or money without that client's, patient's or resident's consent. 
A-6.  "Neglect" means the failure to provide goods and services necessary to avoid 
physical harm, mental anguish or mental illness. 
A-7.  "Nondisqualifying criminal conviction" means a criminal conviction that is 
included as a notation on the registry but does not prohibit employment as a certified 
nursing assistant or an unlicensed assistive person. 
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. 
B-1.  "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. 
C.  "Unlicensed assistive person" or "direct care worker" means an individual 
employed to provide hands-on assistance with activities of daily living or other 
services to individuals in private homes, assisted living programs, residential care 
facilities, hospitals and other health care and direct care settings.  "Unlicensed 
assistive person" and "direct care worker" include but are 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" and "direct care worker" 
do not include a certified nursing assistant employed in the capacity of a certified 
nursing assistant. 
2.  Registry listing.  The registry must contain a listing of certified nursing assistants 
and a listing of any unlicensed assistive persons who have notations pursuant to section 
1812-J.  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. 
2-A.  Registry notations.  For a certified nursing assistant listed on the registry, the 
registry must include a notation of: 
A.  Any criminal conviction of the certified nursing assistant discovered by the 
department; and 
B.  Any substantiated complaint against the certified nursing assistant with specific 
documented findings by the state survey agency of abuse, neglect or misappropriation 
of property of a resident, client or patient.  Only the state survey agency may 
investigate complaints against a certified nursing assistant of abuse, neglect or 
misappropriation of property of a resident, client or patient.  The registry notation 
must include but is not limited to the following information: 
(1)  Documentation of the state survey agency investigation, including the nature 
of the allegation and the evidence that led the state survey agency to substantiate 
the allegation of abuse, neglect or misappropriation of property; 
(2)  The date of the hearing, if the certified nursing assistant chose to appeal the 
state survey agency finding that the complaint was substantiated; and 
(3)  The certified nursing assistant's statement to the state survey agency 
disputing the allegation, if the certified nursing assistant chose to submit a 
statement. 
2-B.  Criminal background checks.  The department shall obtain criminal history 
record information on an active certified nursing assistant every 2 years. 
2-C.  Time limit on consideration of prior criminal conviction.  The department 
shall examine criminal convictions within the last 30 years when making a decision 
concerning the impact a conviction has on a certified nursing assistant's employability. 
2-D.  Conviction for specific named crime.  The department shall categorize 
criminal convictions as disqualifying convictions or nondisqualifying convictions.  
Specific named crimes must be based on crimes under Title 17-A, Part 2 or similar 
conduct for convictions in other jurisdictions.  In determining nondisqualifying criminal 
convictions, the department shall consider whether moral character and conduct 
demonstrate that the individual will respect the person and property of the people in the 
individual's care. 
A.  A disqualifying criminal conviction prohibits employment as a certified nursing 
assistant in health care and direct care settings as a certified nursing assistant for 
either a 10-year period or a 30-year period. 
B.  A nondisqualifying criminal conviction does not prohibit employment as a 
certified nursing assistant. 
2-E.  Length of employment ban; criminal conviction.  The department shall 
specify by rule which disqualifying criminal convictions prohibit employment for 30 
years and which disqualifying criminal convictions prohibit employment for 10 years. 
2-F.  Petition for removal of an employment ban; criminal conviction.  An 
individual may petition the department for removal of an employment ban that is based 
on a disqualifying criminal conviction prior to its expiration only if the criminal 
conviction recorded in the criminal history record information on which the ban is based 
is erroneous. 
2-G.  Substantiated complaint; lifetime employment ban.  An individual may not 
be employed in a health care or direct care setting as a certified nursing assistant if that 
individual has a notation on the registry of a complaint involving abuse, neglect or 
misappropriation of property of a resident, client or patient that was investigated and 
substantiated by the state survey agency.  Except as provided in subsection 2-H, an 
employment ban based on a substantiated complaint is a lifetime ban from employment 
as a certified nursing assistant.  A certified nursing assistant with a notation of any 
substantiated complaint on the registry may not be employed as an unlicensed assistive 
person. 
2-H.  Petition for removal of substantiated finding of neglect.  No sooner than 12 
months after the date a substantiated finding of neglect is placed as a notation on the 
registry, an individual may petition the department for removal of the substantiated 
finding of neglect.  The successful petitioner must meet the removal criteria established 
by the department by rule.  Criteria must include but are not limited to an assessment of 
the risk of reoffending and the conduct of the petitioner. 
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; conviction prior to June 2, 2003.  The If a criminal conviction 
occurred prior to June 2, 2003, restrictions on employment under subsections 6 and 7 
pursuant to this section do not apply to an individual listed and active on the registry as a 
certified nursing assistant prior to the effective date of this subsection June 2, 2003, 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. 
8-A.  Exception; currently employed certified nursing assistants.  A certified 
nursing assistant who would otherwise be banned for conduct that is prohibited pursuant 
to this section is not banned for that conduct if the certified nursing assistant was 
employed as a certified nursing assistant on the effective date of this subsection and the 
conduct occurred prior to the effective date as long as the certified nursing assistant 
continues to work for the same employer at the same facility or program.  When there is a 
change of employer or employment at the specific facility or program, the certified 
nursing assistant is subject to this section. 
9.  Notification.  A Prior to the acceptance of any applicant, a nursing assistant 
training program must notify applicants to that the program of the employment 
restrictions under subsections 6 and 7 prior to the acceptance of any applicant that may be 
imposed pursuant to this section. 
10.  Amending the list of named crimes; advisory board.  The department shall 
establish, chair and staff an advisory board consisting of no more than 10 individuals who 
represent various users of the registry.  The advisory board must include representatives 
of the department, other state agencies, organizations representing direct care workers, 
victim advocacy organizations, the district attorney's office and employers.  At least once 
every 2 years, the advisory board shall convene to: 
A.  Recommend changes to the list of named crimes in the registry; and 
B.  Provide the rational basis for each change under paragraph A to the department. 
11.  Rules.  The department shall adopt rules necessary 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. 7.  22 MRSA §1812-J, as amended by PL 2011, c. 257, §§3 to 8, is further 
amended to read: 
§1812-J.  Unlicensed assistive persons 
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 adverse 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. 
A-8.  "Adverse finding" means an administrative determination made by the 
department, after investigation of a complaint, that the level of abuse, neglect or 
misappropriation of property was of low to moderate severity. 
A-9.  "Finding" means an adverse finding, a substantiated finding and an 
unsubstantiated finding. 
A-10.  "Misappropriation of property" means the deliberate misplacement, 
exploitation or wrongful temporary or permanent use of a client's, patient's or 
resident's belongings or money without that client's, patient's or resident's consent. 
A-11.  "Neglect" means the failure to provide goods and services necessary to avoid 
physical harm, mental anguish or mental illness. 
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" 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 level of 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 or other 
services to individuals in private homes, assisted living programs, residential care 
facilities, hospitals and other health care and direct care settings. "Unlicensed 
assistive person" and "direct care worker" include but are 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" 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 
evidence was found to support an indicated finding or either a substantiated finding 
or an adverse finding of abuse, neglect or misappropriation of property of a client, 
patient or resident. 
2.  Complaint investigation.  The department may investigate complaints of abuse, 
neglect or misappropriation of property of a client, patient or resident in a private home or 
health care or direct care setting against unlicensed assistive persons employed or placed 
by a licensed, certified or registered agency or facility. 
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 adverse finding; or 
C.  Make an unsubstantiated finding. 
3.  Substantiated finding of complaint; registry listing.  A substantiated finding 
must be listed as a notation on the registry.  When a complaint against an unlicensed 
assistive person is substantiated by the department and the unlicensed assistive person is 
listed on the registry pursuant to subsection 4, the department's decision becomes final 
agency action as defined in under Title 5, section 8002, subsection 4  chapter 375.  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. 
3-A.  Adverse finding of complaint; no registry listing.  An indicated adverse 
finding by the department of a complaint against an unlicensed assistive person does not 
prohibit employment as an unlicensed assistive person and is not listed as a notation on 
the registry.  The department's complaint investigation decision becomes final agency 
action as defined in under Title 5, section 8002, subsection 4 chapter 375. 
3-B.  Determination of high severity.  The department shall establish by rule criteria 
for determining high severity.  Criteria must include but are not limited to conduct that 
poses a threat of harm to future consumers. 
3-C.  Determination of low to moderate severity.  The department shall establish 
by rule criteria for determining low to moderate severity.  Criteria must include but are 
not limited to conduct that poses no threat of harm to future consumers. 
3-D.  Unsubstantiated finding; no registry notation.  An unsubstantiated 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 under Title 5, chapter 375. 
4.  Registry listing.  The registry listing for an unlicensed assistive person with a 
notation must include but is not limited to the following information: 
A.  Documentation of the department's investigation, including the nature of the 
allegation and the evidence that led the department to substantiate the allegation of 
abuse, neglect or misappropriation of property; 
B.  The date of the hearing, if the unlicensed assistive person chose to appeal the 
department finding that the complaint was substantiated; and 
C.  The unlicensed assistive person's statement to the department disputing the 
allegation, if the unlicensed assistive person chose to submit one. 
5.  Right to hearing.  The department shall notify the unlicensed assistive person of 
the right to request a hearing to contest the finding that the complaint under subsection 3 
was substantiated.  
6.  Petition for removal of a substantiated finding of abuse, neglect or 
misappropriation of property.  No sooner than 12 months after the date 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, neglect or misappropriation of 
property.  The successful petitioner must meet the removal criteria established by the 
department by rule.  Criteria must include but are not limited to an assessment of the risk 
of reoffending and the conduct of the petitioner. 
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 substantiated finding of a complaint by 
the state survey agency for abuse, neglect or misappropriation of property of a client, 
patient or resident. 
An Subject to subsection 6, an employment ban based on a substantiated finding of a 
complaint is a lifetime employment ban. 
8.  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.  
9.  Employer background checks prior to hiring.  An employer subject to 
licensing, certification and registration laws under this Title shall obtain criminal history 
record information prior to hiring an individual who will work in direct contact with 
consumers and may not employ an individual with a disqualifying criminal conviction on 
the registry. 
10.  Exception; currently employed unlicensed assistive persons.  An unlicensed 
assistive person who would otherwise be banned for conduct that is prohibited under this 
section is not banned for that conduct if the unlicensed assistive person was employed as 
an unlicensed assistive person on the effective date of this subsection and the conduct 
occurred prior to the effective date as long as the unlicensed assistive person continues to 
work for the same employer at the same facility or program.  When there is a change of 
employer or employment at a specific facility or program, the unlicensed assistive person 
is subject to this section. 
11.  Notification.  Prior to the acceptance of an application to a training program for 
an unlicensed assistive person, the training program shall notify the applicant to the 
program of the employment restrictions under this section. 
Sec. 8.  22 MRSA §2131, sub-§4, ¶B, as enacted by PL 2009, c. 621, §3, is 
amended to read: 
B.  A person who operates a temporary nurse agency in violation of the employment 
prohibitions in section 2138 2138-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. 9.  22 MRSA §2138, as amended by PL 2011, c. 257, §16, is repealed. 
Sec. 10.  22 MRSA §2138-A is enacted to read: 
§2138-A.  Prohibited employment 
1.  Prohibited employment.  A temporary nurse agency may not hire, employ or 
place an individual who: 
A.  While working as a certified nursing assistant, was the subject of a complaint 
investigation by the state survey agency that resulted in a substantiated complaint that 
was placed as a notation on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers under section 1812-G; 
B.  While working as an unlicensed assistive person, was the subject of a complaint 
investigation by the department that resulted in a substantiated finding that was 
placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G; 
C.  While working as a certified nursing assistant, received a disqualifying criminal 
conviction that was placed as a notation on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G; or 
D.  Has a disqualifying criminal conviction as determined pursuant to section 
1812-G, subsection 2-D. 
2.  Employer criminal background checks prior to hiring.  Prior to hiring an 
individual who will work in direct contact with a consumer, a temporary nurse agency 
shall obtain 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 subsection. 
A.  A temporary nurse agency may not employ an individual with a disqualifying 
criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G to work in direct contact with a consumer. 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise 
be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not 
banned for that conduct if the certified nursing assistant or unlicensed assistive 
person was employed as a certified nursing assistant or unlicensed assistive person on 
the effective date of this paragraph and the conduct occurred prior to the effective 
date as long as the certified nursing assistant or unlicensed assistive person continues 
to work for the same temporary nurse agency.  When there is a change of employer, 
the certified nursing assistant or unlicensed assistive person is subject to this section. 
3.  Rules.  The department shall 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. 11.  22 MRSA §2149-A, sub-§2, as amended by PL 2011, c. 257, §17, is 
repealed. 
Sec. 12.  22 MRSA §2149-A, sub-§§3 to 5 are enacted to read: 
3.  Prohibited employment.  A home health care provider may not hire an individual 
who: 
A.  While working as a certified nursing assistant, was the subject of a complaint 
investigation by the state survey agency that resulted in a substantiated complaint that 
was placed as a notation on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers under section 1812-G; 
B.  While working as an unlicensed assistive person, was the subject of a complaint 
investigation by the department that resulted in a substantiated finding that was 
placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G; 
C.  While working as a certified nursing assistant, received a disqualifying criminal 
conviction that was placed as a notation on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G; or 
D.  Has a disqualifying criminal conviction as determined pursuant to section 
1812-G, subsection 2-D. 
4.  Employer criminal background checks prior to hiring.  Prior to hiring an 
individual who will work in direct contact with a consumer, a home health care provider 
shall obtain 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 home health care provider shall pay for the criminal 
background check required by this subsection. 
A.  A home health care provider may not employ an individual with a disqualifying 
criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G to work in direct contact with a consumer. 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise 
be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not 
banned for that conduct if the certified nursing assistant or unlicensed assistive 
person was employed as a certified nursing assistant or unlicensed assistive person on 
the effective date of this paragraph and the conduct occurred prior to the effective 
date as long as the certified nursing assistant or unlicensed assistive person continues 
to work for the same home health care provider.  When there is a change of 
employer, the certified nursing assistant or unlicensed assistive person is subject to 
this subsection. 
5.  Rules.  The department shall 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. 13.  22 MRSA §7851, sub-§4, as enacted by PL 2003, c. 634, §6, is repealed. 
Sec. 14.  22 MRSA §7851, sub-§§5 to 7 are enacted to read: 
5.  Prohibited employment.  A licensed assisted housing program may not hire an 
individual who: 
A.  While working as a certified nursing assistant, was the subject of a complaint 
investigation by the state survey agency that resulted in a substantiated complaint that 
was placed as a notation on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers under section 1812-G; 
B.  While working as an unlicensed assistive person, was the subject of a complaint 
investigation by the department that resulted in a substantiated finding that was 
placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G; 
C.  While working as a certified nursing assistant, received a disqualifying criminal 
conviction that was placed as a notation on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G; or 
D.  Has a disqualifying criminal conviction as determined pursuant to section 
1812-G, subsection 2-D. 
6.  Employer criminal background checks prior to hiring.  Prior to hiring an 
individual who will work in direct contact with a consumer, a licensed assisted housing 
program shall obtain 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 licensed assisted housing program shall pay for the 
criminal background check required by this subsection. 
A.  A licensed assisted housing program may not employ an individual with a 
disqualifying criminal conviction on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G to work in direct contact 
with a consumer. 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise 
be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not 
banned for that conduct if the certified nursing assistant or unlicensed assistive 
person was employed as a certified nursing assistant or unlicensed assistive person on 
the effective date of this paragraph and the conduct occurred prior to the effective 
date as long as the certified nursing assistant or unlicensed assistive person continues 
to work for the same licensed assisted housing program at the same facility.  When 
there is a change of employer, the certified nursing assistant or unlicensed assistive 
person is subject to this subsection. 
7.  Rules.  The department shall 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. 15.  22 MRSA §8606, as amended by PL 2011, c. 257, §18, is repealed. 
Sec. 16.  22 MRSA §8607 is enacted to read: 
§8607.  Prohibited employment 
1.  Prohibited employment.  An adult day care program may not hire an individual 
who: 
A.  While working as a certified nursing assistant, was the subject of a complaint 
investigation by the state survey agency that resulted in a substantiated complaint that 
was placed as a notation on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers under section 1812-G; 
B.  While working as an unlicensed assistive person, was the subject of a complaint 
investigation by the department that resulted in a substantiated finding that was 
placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G; 
C.  While working as a certified nursing assistant, received a disqualifying criminal 
conviction that was placed as a notation on the Maine Registry of Certified Nursing 
Assistants and Direct Care Workers under section 1812-G; or 
D.  Has a disqualifying criminal conviction as determined pursuant to section 
1812-G, subsection 2-D. 
2.  Employer criminal background checks prior to hiring.  Prior to hiring an 
individual who will work in direct contact with a consumer, an adult day care program 
shall obtain 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 adult day care program shall pay for the criminal 
background check required by this subsection. 
A.  An adult day care program may not employ an individual with a disqualifying 
criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers under section 1812-G to work in direct contact with a consumer. 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise 
be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not 
banned for that conduct if the certified nursing assistant or unlicensed assistive 
person was employed as a certified nursing assistant or unlicensed assistive person on 
the effective date of this paragraph and the conduct occurred prior to the effective 
date as long as the certified nursing assistant or unlicensed assistive person continues 
to work for the same adult day care program.  When there is a change of employer, 
the certified nursing assistant or unlicensed assistive person is subject to this 
subsection. 
3.  Rules.  The department shall 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. 17.  22 MRSA §9005, sub-§1, as enacted by PL 2011, c. 444, §1, is amended 
to read: 
1.  Criminal history record information.  A veterans' adult day health care program 
shall obtain criminal history record information about applicants an applicant for 
positions a position as an unlicensed assistive personnel person as defined in section 
1717, subsection 1, paragraph D and may not hire an individual who: 
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; 
B.  Has been convicted in a court of law of a crime involving abuse, neglect or 
misappropriation of property in a health care setting; or 
C.  Has a prior criminal conviction within the last 10 years of: 
(1)  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 
(2)  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. 
SUMMARY 
This bill implements the recommendations of the working group created under 
Resolve 2009, chapter 68, which reviewed employment bans based on criminal 
convictions, the rational basis for the employment ban and the length of the employment 
ban prohibiting an individual from working as a certified nursing assistant or unlicensed 
assistive person. 
It prohibits the employment of a certified nursing assistant who, while working as a 
certified nursing assistant, was the subject of a complaint investigation by the division of 
licensing and regulatory services within the Department of Health and Human Services, 
which is the designated state survey agency pursuant to federal law, that resulted in a 
substantiated complaint that was placed as a notation on the Maine Registry of Certified 
Nursing Assistants and Direct Care Workers or received a disqualifying criminal 
conviction that was placed as a notation on the registry or has any disqualifying criminal 
conviction.  It prohibits the employment of an unlicensed assistive person who, while 
working as an unlicensed assistive person, was the subject of a complaint investigation by 
the Department of Health and Human Services that resulted in a substantiated finding that 
was placed as a notation on the registry.  It requires the department to categorize criminal 
convictions as either disqualifying or nondisqualifying convictions and to set 10-year 
bans and 30-year bans on employment for disqualifying convictions.  It sets a lifetime 
ban on employment for substantiated complaints involving abuse, neglect or 
misappropriation of property.  It provides for petitions for the removal of employment 
bans.  It grandfathers in certain currently employed certified nursing assistants and 
unlicensed assistive persons, but provides that if they change their employers or 
employment at a specific facility or program, they become subject to the law.  It provides 
for the department to establish an advisory board to recommend changes to the list of 
named crimes in the registry.  It requires the department to obtain criminal history record 
information for certified nursing assistants every 2 years and employers to obtain criminal 
history record information prior to hiring an individual.