10-144-128 Me. Code R. § 4

Current through 2024-51, December 18, 2024

Section 144-128-4 - Complaint Investigations, Substantiated Findings, Petitions, and Appeals

A.Complaint Investigations, Substantiated Findings and Appeals for C.N.A.s and D.C.W.s

1.Complaint investigation. The Department may investigate complaints and allegations against certified nursing assistants or registered direct care workers of abuse, neglect, exploitation or misappropriation of property of a client, patient or resident. These investigations may not duplicate similar investigations the Department initiates under separate regulations.

2.Decision. After an investigation, the Department shall issue a written decision that the allegation of abuse, neglect, exploitation or misappropriation of property of a client, patient or resident is unsubstantiated or substantiated. Each allegation of abuse, neglect or misappropriation of property must be considered separately. The written decision must include at least the following information:

a. Whether the allegation is unsubstantiated or substantiated;

b. A description of the factors supporting a substantial finding;

c. If an annotation of a substantiated finding is entered on the Registry;

d. A description of the employment prohibition, if any;

e. Notice of the right to appeal the Department's decision;

f. That if they do not request a hearing within 30 days, they will be annotated in the Registry and will be barred from working as a C.N.A. or D.C.W.; and

g. That appeals should be sent to the Division of Licensing and Certification, Maine Department of Health and Human Services.

3.Right to hearing, Appeal

a. If the individual requests a hearing, that hearing will be held in accordance with 10-144 C.M.R. Ch. 1, Administrative Hearings Regulations. The issue at hearing shall be whether the Department was correct in deciding that the individual abused, neglected or misappropriated the property of a patient, client, or resident.

b. If the final decision after hearing is that the finding is substantiated, the substantiation will be annotated in the Registry, unless the individual appeals the decision to Superior Court. If the finding is appealed, the substantiation will not be annotated unless the final result of the court appeal is in the Department's favor.

B.C.N.A. petitions

1.Petition for reinstatement. After removal from the active Registry list for fraudulent or deceitful application or renewal, a C.N.A. may petition the Department for reinstatement no sooner than 12 months after the removal date was documented on the Registry. The Department will deny the petition if removal from the Registry was based on more than one application or renewal that resulted in findings of misrepresentation, deceit, or fraud while on the Registry or while pending before the Registry. Reinstatement is subject to the following:

a. The removal was based on only one application or renewal that resulted in a finding of misrepresentation, deceit or fraud; and

b. The reinstatement petition includes a new, updated application for placement on the Registry.

2.Petition for removal of an annotation of a substantiated finding of neglect under certain circumstances. A C.N.A. may petition the Department to remove an annotation of neglect no sooner than 12 months after the date the neglect finding was documented on the Registry, in accordance with 42 U.S.C. §§ 1395i-3 and 1396r. Substantiated findings of abuse or the misappropriation of property of a patient, client or resident may not be petitioned, in accordance with 22 MRS §1812-G(13). Removal of the annotation of neglect is subject to the following:

a. The annotation of neglect was a one-time occurrence and the employment and personal history of the C.N.A. does not reflect a pattern of abusive behavior or neglect; and

b. The C.N.A. submits a department-approved petition form to the Department that includes a short, clear statement by the C.N.A. that contains the reasons why the C.N.A. is eligible to have the neglect finding removed from the Registry. The Department will then forward those petitions to the licensing or investigative entity that reported the finding to the Department, so that the licensing or investigative agency may review and approve or deny the petition.

3.Petition for removal of an employment ban; criminal conviction. A C.N.A. may petition the Department for early removal of an employment ban in accordance with 22 MRS §1812-G(6)(D).

a. Prior to the expiration of an employment ban under Section 3(A), an individual may petition the department for removal of an employment ban that is based on a disqualifying criminal conviction. Unless otherwise prohibited, removal of the employment ban allows the individual to work as a certified nursing assistant or a direct care worker.

b. No sooner than 5 years after an individual is discharged from the legal restraints imposed by the criminal conviction, an individual may petition the department for removal of a 10-year employment ban.

c. No sooner than 15 years after an individual is discharged from the legal restraints imposed by the criminal conviction, an individual may petition the department for removal of a 30-year employment ban.

d. The Department will assess factors including, but not limited to, the risk of reoffending and the conduct of the petitioner since the conviction in the determination to approve or deny the petition.

e. A petition for removal of an employment ban submitted by a certified nursing assistant or a registered direct care worker must be denied if the conduct that led to the conviction would have resulted in a lifetime ban, if that conduct had been investigated as a complaint that resulted in a substantiated finding.

f. When the Department grants a petition for removal of an employment ban, the individual, unless otherwise prohibited, may work as a certified nursing assistant or a direct care worker. The notation of the criminal conviction remains on the registry.

C.D.C.W. petitions

1.Petition for removal of a notation of a substantiated finding. A D.C.W. may petition the Department to remove a notation of a substantiated finding of neglect no sooner than 12 months after the date the finding was documented on the Registry. The Department will approve or deny the petition by considering the following factors:

a. The finding was a one-time occurrence and the employment and personal history of the D.C.W. does not reflect a pattern of neglect; and

b. The D.C.W. submitted a Department-approved petition form that included a short, clear statement by the D.C.W. that contains the reasons why the D.C.W. is eligible for removal from the Registry. The form must include the following:

i. The employment and personal history of the D.C.W. does not reflect a pattern of neglect;

ii. The action leading to the original finding was a one-time occurrence; and

iii. The action leading to the finding did not result in serious harm to an individual in care or a criminal conviction.

2.Petition for removal of an employment ban due to criminal conviction. Petitions for the removal of an employment ban must be made in accordance with 22 MRS §1812-G(6)(D).The Department will respond to a petition in accordance with rule adopted under 22 MRS §9054.

3.Retention of information. Information resulting in annotation remains on the Registry permanently, unless documentation demonstrates that the annotated D.C.W. was listed in error, the individual's conviction was overturned in a court of law, or the Department is notified of the individual's death. In order to assert that the substantiated finding was made in error, the D.C.W. must provide evidence to the Department that could not have been presented at the original hearing or that is new evidence.

D.Any petition for removal of an employment ban due to criminal conviction. Prior to the expiration of an employment ban under Section 3(A), an individual may petition the department for removal of an employment ban that is based on a disqualifying criminal conviction.

1. An individual may petition the department for removal of:

a. A 5-year employment ban, no sooner than 2 1/2 years after an individual is discharged from the legal restraints imposed by the criminal conviction;

b. A 10-year employment ban, no sooner than 5 years after an individual is discharged from the legal restraints imposed by the criminal conviction; and

c. A 30-year employment ban, no sooner than 15 years after an individual is discharged from the legal restraints imposed by the criminal conviction.

2. Removal of the employment ban will be based upon assessment of the risk of reoffending and the conduct of the petitioner since the conviction, and the petitioner meets the burden of proof that there exists sufficient rehabilitation to warrant the public trust.

3. A petition for removal of an employment ban, submitted by a certified nursing assistant or a registered direct care worker, will be denied if the conduct that led to the conviction would have resulted in a substantiated finding of abuse, neglect, or the misappropriation of property of a client, patient or resident and no proof is provided that the conviction was caused by factors beyond person's control.

4. When the department grants a petition for removal of an employment ban, the individual, unless otherwise prohibited, may work as a certified nursing assistant or a direct care worker. The notation of the criminal conviction remains on the Registry.

E.Appeals

1.C.N.A. right to appeal. A C.N.A. may request an administrative hearing to appeal the following Departmental decisions:

a. Denial of an application or renewal for placement on the C.N.A. Registry;

b. Removal from the active C.N.A. Registry list; or

c. Denial of a petition for removal of an employment ban.

2.D.C.W. right to appeal. An annotated D.C.W. may appeal the denial of a petition.

3.Administrative hearing . A C.N.A. or D.C.W. may submit a written request for a hearing and must specify the reason for the appeal. This hearing request must be mailed to the Department within 10 days from receipt of the Department's decision to take one of the actions listed in Section 4C(1) or (2) above. The administrative hearing process is governed by the Maine Administrative Procedure Act at 5 MRS Ch. 375 and the Department's Administrative Hearings Regulations (10-144 CMR Ch.1) .

4.Judicial review. A person who is aggrieved by a final agency action may be entitled to judicial review in the Superior Court.

10-144 C.M.R. ch. 128, § 4