An Act To Reestablish the Office of Advocacy within the Department of Health and Human Services
Maine Legislature, Session 128, LD 1676
Committee: Health and Human Services
Sponsors: DENNO
Amends: 22 MRSA §7924, 34-B MRSA §1223, 34-B MRSA §5005-A, 34-B MRSA §5005-B, 34-B MRSA §5470-B, 34-B MRSA §5604, 34-B MRSA §5604-A, 34-B MRSA §5605, 34-B MRSA §5606, 34-B MRSA §5608, 34-B MRSA §5611

Legislative Document
No. 1676
H.P. 1164
House of Representatives, December 20, 2017
An Act To Reestablish the Office of Advocacy within the 
Department of Health and Human Services
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203.
Received by the Clerk of the House on December 18, 2017.  Referred to the Committee on 
Health and Human Services pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint 
Rule 401.
ROBERT B. HUNT
Clerk
Presented by Representative DENNO of Cumberland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §7924, sub-§1, as amended by PL 2011, c. 657, Pt. EE, §1, is 
further amended to read:
1.  Alleged violations reported and investigated.  Any person who believes that any 
of those rules governing the licensure of long-term care facilities or the operation of 
assisted living programs and services authorized pursuant to section 7853 adopted by the 
department pertaining to residents' rights and conduct of resident care has been violated 
may report the alleged violation to the protection and advocacy agency designated 
pursuant to Title 5, section 19502; the long-term care ombudsman pursuant to section 
5106, subsection 11-C and section 5107-A; the Office of Advocacy pursuant to Title 
34-B, section 5005-B; and any other agency or person whom the commissioner may 
designate.
Sec. 2.  34-B MRSA §1223, sub-§9, ¶F, as amended by PL 2011, c. 657, Pt. EE, 
§2, is further amended to read:
F.  The board may refer individual cases that require investigation or action to the 
Office of Advocacy within the department, the protection and advocacy agency 
designated pursuant to Title 5, section 19502 or any other appropriate agency.
Sec. 3.  34-B MRSA §5005-A, as amended by PL 2013, c. 310, §§2 to 5, is 
repealed.
Sec. 4.  34-B MRSA §5005-B is enacted to read:
§5005-B.  Office of Advocacy
1.  Establishment.  The Office of Advocacy, referred to in this section as "the 
office," is established within the department to provide the services described in 
subsection 3 to individuals with intellectual disabilities or autism.
2.  Chief advocate.  A chief advocate shall direct and coordinate the program of the 
office.
A.  The chief advocate shall report administratively to the commissioner and advise 
and consult with and inform the commissioner on the issues described in this section.  
The chief advocate shall provide the commissioner with regular reports on the office's 
findings, conclusions and recommendations regarding individual and systemic 
violations of the rights of individuals with intellectual disabilities or autism.
B.  The chief advocate shall select other advocates needed to carry out the intent of 
this section who shall report only to the chief advocate.
C.  The chief advocate shall establish operating policies and procedures to guide the 
work of the office, including policies regarding priority setting.
D.  The chief advocate and all other advocates are classified state employees.
3.  Duties.  The office, through the chief advocate and other advocates, shall:
A.  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 claims, grievances and allegations of violations of the rights of 
individuals with intellectual disabilities or autism;
C.  Intercede on behalf of individuals with intellectual disabilities or autism with 
officials of any provider of service administered, licensed or funded by the 
department, except that the office may refuse to take action on any complaint that it 
considers to be trivial or moot 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 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 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 and publish reports necessary to the performance of the duties described in 
this section.  The chief advocate may report findings of the office to groups outside 
the department, such as legislative bodies, advisory committees, commissions, law 
enforcement agencies and the press, and may authorize the advocates in the office to 
so communicate.  At least annually, the chief advocate 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.
4.  Participate in personal planning.  The office, through the chief advocate and 
other advocates, may participate in personal planning when:
A.  The department is the public guardian; or
B.  An advocate has concerns regarding the rights or dignity of an individual with 
intellectual disabilities or autism.
An individual who is not under guardianship has the right to refuse such participation by 
an advocate.
5.  Access to files and records.  The office, through the chief advocate and other 
advocates, has access, limited only by the civil service law, to the files, records and 
personnel of any provider of services administered, licensed or funded by the department.  
Within the department, the office has access to all reports and related documents 
submitted pursuant to section 5604-A.
6.  Confidentiality.  Requests for confidentiality are treated as follows.
A.  Any request by or on behalf of an individual with intellectual disabilities or 
autism for action by the office 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.
7.  Protection for advocates.  Advocates may not be disciplined or sanctioned for 
any action taken pursuant to this section on behalf of individuals with intellectual 
disabilities or autism.
8.  Budget.  When submitting any budget request to the Legislature, the department 
and the Governor shall provide that any funds for the office be listed in a separate 
account.
Sec. 5.  34-B MRSA §5470-B, sub-§7, ¶C is enacted to read:
C.  The department shall provide the Office of Advocacy, established in section 
5005-B, with sufficient advance notice of all scheduled personal planning meetings to 
permit the office to determine if the attendance or participation of an advocate in the 
planning process is appropriate pursuant to the duties and responsibilities of the 
office.
Sec. 6.  34-B MRSA §5604, sub-§3, ¶A, as amended by PL 2011, c. 657, Pt. EE, 
§7, is further amended to read:
A.  The department shall provide easily accessible and regular notice of the grievance 
process to persons with intellectual disabilities or autism served by the department.  
This notice must be included in informational materials provided to such persons, as 
well as to guardians, families, correspondents and allies.  Notice of the right to appeal 
must be prominently displayed in regional offices and on the department’s publicly 
accessible website and must be readily available from provider agencies. Notice of 
the right to appeal must be included in all substantive correspondence regarding 
personal planning. Written notice of the right to appeal must also be provided when 
there is a denial or reduction of services or supports to persons served by the 
department. All notices and information regarding the grievance process must be 
written in language that is plain and understandable and must include the address and 
telephone number of the Office of Advocacy, established in section 5005-B, and the 
protection and advocacy agency designated pursuant to Title 5, section 19502.
Sec. 7.  34-B MRSA §5604-A, sub-§3, as amended by PL 2011, c. 657, Pt. EE, 
§8, is further amended to read:
3.  Violation.  All persons with knowledge of an alleged violation of the rights of an 
individual with an intellectual disability or autism as set out in section 5605 shall 
promptly report the details of the alleged violation to the advocacy agency designated 
pursuant to Title 5, section 19502 Office of Advocacy, established in section 5005-B, as 
set forth in department rules.
Sec. 8.  34-B MRSA §5605, sub-§13, ¶B, as amended by PL 2013, c. 310, §7, 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 an advocate from the Office of Advocacy, established in section 5005-B, 
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 an advocate from the 
advocacy agency designated pursuant to Title 5, section 19502 Office of 
Advocacy, established in section 5005-B, 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. 9.  34-B MRSA §5605, sub-§14-A, as amended by PL 2011, c. 657, Pt. EE, 
§10, is further amended to read:
14-A.  Restraints.  A person with an intellectual disability or autism is entitled to be 
free from restraint unless:
A.  The restraint is a short-term step to protect the person from imminent injury to 
that person or others; or
B.  The restraint has been approved as a behavior management program in 
accordance with this section.
A restraint may not be used as punishment, for the convenience of the staff or as a 
substitute for habilitative services.  A 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 restraint may not cause physical injury to the person receiving 
services and must be designed to allow the greatest possible comfort and safety.
Daily records of the use of restraints identified in paragraph A must be kept, which may 
be accomplished by meeting reportable event requirements.
Daily records of the use of 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 
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 advocacy agency 
designated pursuant to Title 5, section 19502 Office of Advocacy, established in section 
5005-B.
Sec. 10.  34-B MRSA §5606, sub-§1, as amended by PL 2013, c. 310, §8, 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," Office of Advocacy, 
established in section 5005-B, and to the Attorney General's office.
A.  The agency Office of Advocacy, established in section 5005-B, shall investigate 
each alleged violation pursuant to section 5005-A 5005-B.
B.  The agency 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 Office of 
Advocacy, established in section 5005-B, 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 2 working days after the day of the occurrence or discovery of 
the alleged incident.
Sec. 11.  34-B MRSA §5608, sub-§2, as amended by PL 2011, c. 657, Pt. EE, 
§12, is further amended to read:
2.  Duties.  The residential council shall work closely with the department and the 
advocacy agency designated pursuant to Title 5, section 19502 Office of Advocacy, 
established in section 5005-B, to promote the interests and welfare of all persons 
receiving services from the provider.
Sec. 12.  34-B MRSA §5611, as enacted by PL 2013, c. 310, §9, is repealed.
SUMMARY
This bill reestablishes the Office of Advocacy, abolished in 2011, in the Department 
of Health and Human Services as an internal agency to protect the interests of individuals 
with intellectual disabilities and autism.