An Act To Improve the Rights and Basic Protections of Persons with Acquired Brain Injuries
Maine Legislature, Session 130, LD 0559
Committee: Health and Human Services
Sponsors: HEPLER, MOORE, GROHOSKI, MEYER, PERRY, VITELLI
Amends: 22-A MRSA §101, 22-A MRSA §206, 34-B MRSA §5601, 34-B MRSA §5602, 34-B MRSA §5603, 34-B MRSA §5604, 34-B MRSA §5605, 34-B MRSA §5610

Legislative Document
No. 559
H.P. 404
House of Representatives, February 24, 2021
An Act To Improve the Rights and Basic Protections of Persons with 
Acquired Brain Injuries
(EMERGENCY)
Received by the Clerk of the House on February 22, 2021.  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 HEPLER of Woolwich.
Cosponsored by Senator MOORE of Washington and
Representatives: GROHOSKI of Ellsworth, MEYER of Eliot, PERRY of Calais, Senator: 
VITELLI of Sagadahoc.
Emergency preamble.  Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, each person with an acquired brain injury is entitled to the same rights 
enjoyed by other citizens of the State and the United States; and
Whereas, the Department of Health and Human Services has adopted rules regarding 
the rights and basic protections of persons who receive adult mental health services and 
adult developmental services and children who receive behavioral health services but has 
not adopted rules regarding the rights and basic protections of adults with acquired brain 
injuries; and
Whereas, this legislation must take effect before the expiration of the 90-day period 
so that a study regarding the rights and basic protections of persons with acquired brain 
injuries may be completed and a report submitted in time for submission to the next 
legislative session; and
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,
Be it enacted by the People of the State of Maine as follows:
PART A
Sec. A-1.  22-A MRSA §101, sub-§1-B is enacted to read:
1-B.  Acquired brain injury.  "Acquired brain injury" has the same meaning as in 
Title 22, section 3086, subsection 1.
Sec. A-2.  22-A MRSA §206, sub-§4, as amended by PL 2011, c. 542, Pt. A, §51, 
is further amended to read:
4.  Grievance procedures.  The commissioner shall establish procedures for hearing 
grievances of clients who receive mental health services or adult developmental services 
or, of children who receive behavioral health services or of adults who receive acquired 
brain injury services.  The procedures must include the opportunity for a timely hearing 
before a state hearing examiner or an independent fair hearing examiner.  The 
commissioner may contract for the services of the hearing examiner, who shall conduct 
adjudicatory proceedings pursuant to the Maine Administrative Procedure Act.
Sec. A-3.  34-B MRSA c. 5, sub-c. 4, headnote, is amended to read:
SUBCHAPTER 4
RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES OR, AUTISM 
OR ACQUIRED BRAIN INJURY
Sec. A-4.  34-B MRSA §5601, sub-§1-D is enacted to read:
1-D.  Acquired brain injury.  "Acquired brain injury" has the same meaning as in 
Title 22, section 3086, subsection 1.
Sec. A-5.  34-B MRSA §5602, as amended by PL 2011, c. 542, Pt. A, §125, is 
further amended to read:
§5602.  Purpose
It is the intent of the Legislature to guarantee individual dignity, liberty, pursuit of 
happiness and the protection of the civil and legal rights of persons with intellectual 
disabilities or, autism or acquired brain injuries and to articulate rights of persons with 
intellectual disabilities or, autism or acquired brain injuries, so that these rights may be 
exercised and protected.
Sec. A-6.  34-B MRSA §5603, as amended by PL 2011, c. 542, Pt. A, §126, is 
further amended to read:
§5603.  Entitlement
Each person with an intellectual disability or, autism or an acquired brain injury is 
entitled to the rights enjoyed by citizens of the State and of the United States, unless some 
of these rights have been limited or suspended by a court of competent jurisdiction.
1.  Person committed to the commissioner.  The rights and basic protections set out 
in section 5605 of a person with an intellectual disability or, autism or an acquired brain 
injury who is committed to the commissioner as not criminally responsible pursuant to Title 
15, section 103 or as incompetent to stand trial pursuant to Title 15, section 101‑D may be 
limited or suspended only if the commissioner submits to the applicable court a written 
treatment plan that specifies each limitation of a right or basic protection and the treatment 
plan has been approved by the court.
Sec. A-7.  34-B MRSA §5604, first ¶, as amended by PL 2011, c. 542, Pt. A, §127, 
is further amended to read:
The Legislature finds and declares that the rights of persons with intellectual 
disabilities or, autism or acquired brain injuries can be protected best under a system of 
services that operates according to the principles of normalization and full inclusion and 
that the State's system of services must operate according to these principles with the goals 
of:
Sec. A-8.  34-B MRSA §5604, sub-§3, as amended by PL 2011, c. 657, Pt. EE, §7, 
is further amended to read:
3.  Grievance right.  Providing a person with an intellectual disability or, autism or an 
acquired brain injury with the right to appeal a decision regarding actions or inactions by 
the department that affects the person's life. The department shall establish in rule a process 
for hearing such grievances pursuant to Title 22‑A, section 206, subsection 4.  The rules 
must contain strict time frames for the resolution of grievances. The rules may provide for 
resolution of grievances through mediation.
A.  The department shall provide easily accessible and regular notice of the grievance 
process to persons with intellectual disabilities or, autism or acquired brain injuries 
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 protection and advocacy agency designated 
pursuant to Title 5, section 19502.
B.  The department must make available a one-page form that enables a person with an 
intellectual disability or, autism or an acquired brain injury to file a grievance.  A 
grievance may also be filed through an oral request.  If a grievance is filed through an 
oral request, the person receiving the grievance shall reduce the grievance to writing 
using a one-page form made available by the department.
C.  The department shall offer regular training in the grievance process for persons 
served by the department, their families, guardians and allies and department and 
service provider staff.
D.  If an appeal proceeds to a hearing, the hearing officer's decision constitutes final 
agency action for the purposes of Rule 80C of the Maine Rules of Civil Procedure 
unless final decision-making authority has been reserved by the commissioner. If the 
commissioner makes the final decision and modifies or rejects the hearing officer's 
recommended decision, the commissioner must state in writing the basis for the 
commissioner's decision.  When the commissioner rejects or modifies a hearing 
officer's factual findings or makes additional factual findings, the commissioner shall 
articulate the evidentiary basis for such rejection or modification with appropriate 
references to the record.  The commissioner shall give substantial deference to a 
hearing officer's determinations on matters of credibility relating to testimony that was 
heard by the hearing officer, and when rejecting or modifying such determinations of 
credibility, the commissioner shall state with particularity the reasons with appropriate 
references to evidence in the record.  In the event the commissioner fails to issue a 
written final decision within 30 days of the date of the recommended decision, the 
recommended decision of the hearing officer is deemed the final decision of the 
commissioner.
Sec. A-9.  34-B MRSA §5604, 2nd ¶, as amended by PL 2011, c. 542, Pt. A, §127, 
is further amended to read:
The rights and basic protections of a person with an intellectual disability or, autism or 
an acquired brain injury under section 5605 may not be restricted or waived by that person's 
guardian, except as permitted by rules adopted pursuant to this section.
Sec. A-10.  34-B MRSA §5605, as amended by PL 2013, c. 500, §1, is further 
amended by amending the section headnote to read:
§5605.  Rights and basic protections of a person with an intellectual disability or, 
autism or an acquired brain injury
Sec. A-11.  34-B MRSA §5605, first ¶, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
A person with an intellectual disability or autism is entitled to the following rights and 
basic protections.  A person with an acquired brain injury is entitled to the rights and basic 
protections outlined in subsections 1 to 11.
Sec. A-12.  34-B MRSA §5605, sub-§1, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
1.  Humane treatment.  A person with an intellectual disability or, autism or an 
acquired brain injury is entitled to dignity, privacy and humane treatment.
Sec. A-13.  34-B MRSA §5605, sub-§2, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
2.  Practice of religion.  A person with an intellectual disability or, autism or an 
acquired brain injury is entitled to religious freedom and practice without any restriction or 
forced infringement on that person's right to religious preference and practice.
Sec. A-14.  34-B MRSA §5605, sub-§3, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
3.  Communications.  A person with an intellectual disability or, autism or an acquired 
brain injury is entitled to private communications.
A.  A person with an intellectual disability or, autism or an acquired brain injury is 
entitled to receive, send and mail sealed, unopened correspondence. A person who is a 
provider may not delay, hold or censor any incoming or outgoing correspondence of 
any person with an intellectual disability or, autism or an acquired brain injury, nor 
may any such correspondence be opened without the consent of the person or the 
person's legal guardian.
B.  A person with an intellectual disability or, autism or an acquired brain injury is 
entitled to reasonable opportunities for telephone and Internet communication.
C.  A person with an intellectual disability or, autism or an acquired brain injury is 
entitled to an unrestricted right to visitations during reasonable hours unless this right 
has been restricted pursuant to rules adopted pursuant to section 5604.
Sec. A-15.  34-B MRSA §5605, sub-§4, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
4.  Work.  A person with an intellectual disability or, autism or an acquired brain injury 
engaged in work programs that require compliance with state and federal wage and hour 
laws is entitled to fair compensation for labor in compliance with regulations of the United 
States Department of Labor.
Sec. A-16.  34-B MRSA §5605, sub-§5, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
5.  Vote.  A person with an intellectual disability or, autism or an acquired brain injury 
may not be denied the right to vote.
Sec. A-17.  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 or an 
acquired brain injury 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 or unless 
this right has been restricted pursuant to rules adopted pursuant to section 5604.
Sec. A-18.  34-B MRSA §5605, sub-§7, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
7.  Nutrition.  A person with an intellectual disability or, autism or an acquired brain 
injury is entitled to nutritious food in adequate quantities and meals may not be withheld 
for disciplinary reasons.
Sec. A-19.  34-B MRSA §5605, sub-§8, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
8.  Medical care.  A person with an intellectual disability or, autism or an acquired 
brain injury is entitled to receive prompt and appropriate medical and dental treatment and 
care for physical and mental ailments and for the prevention of any illness or disability, and 
medical treatment must be consistent with the accepted standards of medical practice in the 
community, unless the religion of the person with an intellectual disability or, autism or an 
acquired brain injury so prohibits.
A.  Medication may be administered only at the written order of a physician.
B.  Medication may not be used as punishment, for the convenience of staff, as a 
substitute for a habilitation plan or in unnecessary or excessive quantities.
C.  Daily notation of medication received by each person with an intellectual disability 
or, autism or an acquired brain injury must be kept in the records of the person with an 
intellectual disability or, autism or an acquired brain injury.
D.  Periodically, but no less frequently than every 6 months, the drug regimen of each 
person with an intellectual disability or, autism or an acquired brain injury must be 
reviewed by a physician or other appropriate monitoring body, consistent with 
appropriate standards of medical practice.
E.  All prescriptions must have a termination date.
G.  Prior to instituting a plan of experimental medical treatment or carrying out any 
surgical procedure, express and informed consent must be obtained from the person 
with an intellectual disability or, autism or an acquired brain injury, unless the person 
has been found to be legally incompetent, in which case the person's guardian may 
consent.
(1)  Before making a treatment or surgical decision, the person must be given 
information, including, but not limited to, the nature and consequences of the 
procedures, the risks, benefits and purposes of the procedures and the availability 
of alternate procedures.
(2)  The person or, if legally incompetent, that person's guardian may withdraw 
express and informed consent at any time, with or without cause, before treatment 
or surgery.
H.  Notwithstanding the absence of express and informed consent, emergency medical 
care or treatment may be provided to any person with an intellectual disability or, 
autism or an acquired brain injury who has been injured or who is suffering from an 
acute illness, disease or condition if delay in initiation of emergency medical care or 
treatment would endanger the health of the person.
I.  Notwithstanding the absence of express and informed consent, emergency surgical 
procedures may be provided to any person with an intellectual disability or, autism or 
an acquired brain injury who has been injured or who is suffering from an acute illness, 
disease or condition if delay in initiation of emergency surgery would substantially 
endanger the health of the person.
Sec. A-20.  34-B MRSA §5605, sub-§9, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
9.  Sterilization.  A person with an intellectual disability or, autism or an acquired 
brain injury may not be sterilized, except in accordance with chapter 7.
Sec. A-21.  34-B MRSA §5605, sub-§10, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
10.  Social activity.  A person with an intellectual disability or, autism or an acquired 
brain injury is entitled to opportunities for behavioral and leisure time activities that include 
social interaction in the community, as set out in section 5610.  This right may be waived 
or restricted only under the rules adopted pursuant to section 5604 or pursuant to a 
treatment plan approved pursuant to section 5603, subsection 1.
Sec. A-22.  34-B MRSA §5605, sub-§11, as amended by PL 2011, c. 542, Pt. A, 
§129, is further amended to read:
11.  Physical exercise.  A person with an intellectual disability or, autism or an 
acquired brain injury is entitled to opportunities for appropriate physical exercise, including 
the use of available indoor and outdoor facilities and equipment.
Sec. A-23.  34-B MRSA §5610, as amended by PL 2011, c. 542, Pt. A, §131, is 
further amended to read:
§5610.  Service delivery
1.  Guiding service delivery.  The delivery of services by providers of services and 
the department to persons with intellectual disabilities and, autism or acquired brain injuries 
is guided by the following.
A.  Persons with intellectual disabilities or, autism or acquired brain injuries have the 
same rights as all citizens, including the rights to live, work and participate in the life 
of the community.
B.  Community inclusion is achieved by connecting persons and their families, 
whenever possible, to local and generic supports within the community and by the use 
of residential services that are small and integrated into the community.
C.  Real work for real pay for persons in integrated settings in the community is the 
cornerstone of all vocational and employment services.
D.  Service delivery to persons with intellectual disabilities and, autism or acquired 
brain injuries is based on the following fundamentals:
(1)  Maximizing the growth and development of the person and inclusion in the 
community;
(2)  Maximizing the person's control over that person's life;
(3)  Supporting the person in that person's own home;
(4)  Acknowledging and enhancing the role of the family, as appropriate, as the 
primary and most natural caregiver; and
(5)  Planning for the delivery of community services that:
(a)  Promotes a high quality of life;
(b)  Is based on ongoing individualized assessment of the strengths, needs and 
preferences of the person and the strengths of that person's family; and
(c)  Identifies and considers connections in other areas of the person's life, 
including but not limited to family, allies, friends, work, recreation and 
spirituality.
PART B
Sec. B-1.  Task force.  The Commissioner of Health and Human Services, referred 
to in this Part as "the commissioner," shall convene a task force to develop and make 
recommendations on rules and procedures regarding the rights and basic protections of 
persons with acquired brain injuries, referred to in this Part as "the task force."
Sec. B-2.  Composition.  The task force must consist of:
1.  Experts in the field of acquired brain injury;
2.  Providers of services to persons with acquired brain injuries;
3.  Persons with acquired brain injuries;
4.  Family members of persons with acquired brain injuries;
5.  Advocates for persons with acquired brain injuries; and
6.  Representatives of the Acquired Brain Injury Advisory Council established under 
the Maine Revised Statutes, Title 34-B, section 19001.
Sec. B-3.  Duties.  The task force shall recommend:
1.  Rules regarding the rights and basic protections of persons with acquired brain 
injuries;
2.  Procedures for the annual instruction for persons receiving brain injury services, 
provider staff and others on the rights and basic protections of persons with acquired brain 
injuries;
3.  Procedures for hearing grievances of persons with acquired brain injuries; and
4.  Procedures for the filing and resolution of complaints regarding the brain injury 
service system for persons with acquired brain injuries.
Sec. B-4.  Report.  The commissioner shall report the findings and recommendations 
of the task force to the Joint Standing Committee on Health and Human Services by January 
2, 2022.
Sec. B-5.  Staff assistance.  The Department of Health and Human Services shall 
provide necessary staffing services to the task force.
Emergency clause.  In view of the emergency cited in the preamble, this legislation 
takes effect when approved.
SUMMARY
This bill adds references to persons with acquired brain injuries to laws providing rights 
and basic protections to persons with intellectual disabilities or autism, including laws 
governing grievance procedures.  It directs the Commissioner of Health and Human 
Services to convene a task force to develop and recommend rules and procedures regarding 
the rights and basic protections of persons with acquired brain injuries.  It also requires the 
commissioner to report the findings and recommendations of the task force to the Joint 
Standing Committee on Health and Human Services by January 2, 2022.