An Act To Provide Flexibility in the Treatment of Individuals with Intellectual Disabilities or Autism
Maine Legislature, Session 129, LD 1153
Committee: Health and Human Services
Sponsors: HANDY, LIBBY, BROOKS, CLOUTIER, CRAVEN, FARNSWORTH
Amends: 34-B MRSA §5601, 34-B MRSA §5605

Legislative Document
No. 1153
H.P. 842
House of Representatives, March 7, 2019
An Act To Provide Flexibility in the Treatment of Individuals with 
Intellectual Disabilities or Autism
Reference to the Committee on Health and Human Services suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative HANDY of Lewiston.
Cosponsored by Senator LIBBY of Androscoggin and
Representatives: BROOKS of Lewiston, CLOUTIER of Lewiston, CRAVEN of Lewiston, 
FARNSWORTH of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  34-B MRSA §5601, sub-§§1-D and 3-A are enacted to read:
1-D.  Contingent reinforcement.  "Contingent reinforcement" means reinforcement 
that is dependent on an individual's behavior.
3-A.  Functional behavioral assessment.  "Functional behavioral assessment" 
means a process used to help identify challenging behaviors and their purpose or function 
and to analyze the factors that lead to challenging behaviors within the environment in 
which they occur.
Sec. 2.  34-B MRSA §5601, sub-§4-A is enacted to read:
4-A.  Noncontingent reinforcement.  "Noncontingent reinforcement" means 
reinforcement that is independent of an individual's behavior.
Sec. 3.  34-B MRSA §5605, sub-§6, as amended by PL 2011, c. 542, Pt. A, §129, 
is further amended to read:
6.  Personal property.  A person with an intellectual disability or autism is entitled 
to the possession and use of that person's own clothing, personal effects and money, 
except when temporary custody of clothing or personal effects by a provider is necessary 
to protect the person or others from imminent injury, this right has been temporarily 
restricted through use of contingent reinforcement or noncontingent reinforcement 
procedures under a behavior modification or behavior management program consistent 
with subsection 13, paragraph B, subparagraph (2) or unless this right has been restricted 
pursuant to rules adopted pursuant to section 5604.
Sec. 4.  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 and a representative designated by the Maine Developmental Services 
Oversight and Advisory Board.  One of the members must be qualified by 
training and experience in the use of behavior change procedures and the 
assessment and treatment of severe problem behavior.  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.
(a)  A behavior modification or behavior management program submitted for 
review under this paragraph must:
(i)  Be based on the results of a functional behavioral assessment;
(ii)  Include intervention components that are consistent with established 
best practices in the treatment of severe problem behavior, including the 
use of reinforcement for adaptive behavior;
(iii)  Have been demonstrated to produce a significant and sustained 
improvement in severe problem behavior;
(iv)  Have been developed and overseen by a qualified individual; and
(v)  Have the consent of the person or legal guardian, if any, of the 
person.
(b)  When determining whether to approve a behavior modification or 
behavior management program for a person under this paragraph, the review 
team shall consider the successful use of the program for the person in 
another state by a person licensed to provide behavioral health care and 
treatment in that state.
(c)  The person or legal guardian, if any, of the person may appeal a 
determination by the review team in accordance with procedures established 
by rule by the department.  The appeal process must include a review of the 
behavior modification or behavior management program by a group of 
professionals with training and experience in behavior modification and 
behavior management programs; 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.
SUMMARY
This bill requires a review team determining whether to approve a behavior 
modification or behavior management program for a person with an intellectual disability 
or autism to consider the successful use of the program for the person in another state.  It 
requires that one member of the review team must be qualified by training and experience 
in the use of behavior change procedures and the assessment and treatment of severe 
problem behavior.  It specifies criteria that a behavior modification or behavior 
management program submitted for review must meet.  It provides for a process for 
appealing a review team's determination.  It allows for temporary restrictions on the 
possession or use of personal property through the use of reinforcement procedures under 
a behavior modification or behavior management program.