10- 144 C.M.R. ch. 60, § 3

Current through 2024-51, December 18, 2024

Section 144-60-3 - CONDUCTING BACKGROUND CHECKS AND REPORTS

A.Notice. Employers must provide notice regarding the background check process and disqualifying offenses to direct access workers using forms provided by the Department.

B.Authorization and releases. Employers must obtain authorization and releases from direct access workers using forms provided by the Department prior to requesting a background check.

1.Same document. The notice, authorization and release may be in the same document.

2.Maintain records. Employers must maintain copies of all signed notice, authorization and release forms.

a. Employers must retain signed notice, authorization, and release forms:

i. For one year if the direct access worker is not hired; or

ii. Until new notices, authorizations, and releases are obtained for the direct access worker's next background check; or

iii. For a minimum of one year after the direct access worker's status as a direct access worker ends.

b. Employers must make the signed forms available immediately upon request from the Department.

C.Obtaining information required to conduct checks. Employers must obtain and direct access workers must provide the information and documentation identified in this sub-section.

1.Identifying information. Employers must obtain the following information from direct access workers in order to complete a background check:

a. Full name, including maiden name, and all previously used names;

b. Date of birth;

c. Current address; and

d. The identification number from a:

i. State-issued identification card or driver's license;

ii. Military identification card;

iii. Passport; or

iv. Other form of photographic or government certified identification approved by the Department.

2.Failure to provide current address. The MBCC or the approved alternate vendor will use the employer's address provided to issue all notices regarding the direct access worker. Failure to provide a correct current address may delay the receipt of notices. Delay caused by failure to provide a correct current address will not extend the period for conditional employment.

3.Retain Form I-9. Employers must complete and retain the United States Citizenship and Immigration Services (USCIS) Employment Eligibility Verification Form I-9 and documentation relied upon to establish the identity of every direct access worker.

4.Notice of legal name change. Employers must notify the MBCC of the legal name change of a direct access worker in writing within ten business days of learning of the change. The notification must include proof of the name change, such as a court document, marriage certificate or divorce decree.

D.Use of the MBCC or alternate vendors. Employers must use the MBCC to complete an direct access worker's comprehensive background check, unless the employer has received written approval to use an alternate vendor, as set forth in this rule. Employers must comply with the instructions and requirements of the system.

1.Phased implementation. The MBCC or approved alternate vendors will become operational for employers in a staged and orderly process based on the type of employer and the number of direct access workers employed. Employers have 14 business days from the date of notification by the Department to begin use of the MBCC.

2.Grandfathered employees. Individuals serving as direct access workers who were employed as direct access workers prior to the date the MBCC becomes operational for that employer are considered grandfathered employees. Employers have 365 calendar days from the date the MBCC becomes operational for the employer to obtain a comprehensive background check report on grandfathered employees.

3.Master list. Employers must create and maintain a master list of all their direct access workers that reflects the date and result of background checks completed.

a. Employers must keep the direct access workers' employment status current.

b. Employers must update their master list in the system within 30 calendar days of terminating or separating from a direct access worker employee.

4.Placed and temporary workers. Employers must complete comprehensive background checks for individuals hired as direct access workers in accordance with 22 M.R.S. §9054(4).

5.Alternate vendors. Employers may seek approval from the Department to continue use of an alternate vendor to conduct all comprehensive background checks.

a. A vendor must comply with the following conditions to be approved by the Department:

i. The employer was using an alternate vendor to conduct comprehensive background checks for his or her direct access workers on, or before, February 6, 2017;

ii. The employer applies to the Department for the use of a vendor within the 14 business day period following the notification described in Section 3(D)(1) of this rule;

iii. The vendor produces a background check report for each direct access worker that complies with the standards set forth in 22 M.R.S. §9054, including continuous monitoring of convictions (rap back);

iv. The employer provides an attestation of continued use of the approved background check vendor to the Department every 365 calendar days following the initial approval;

v. The employer maintains a master list of all direct access workers and the status of their comprehensive background checks and provides access of this list to the Department, upon request, during regular business hours;

vi. The employer complies with all other standards put forth in this rule and remains liable to sanctions for violations of this rule; and

vii. The direct access worker may not be employed in a direct access position, if the employer receives a disqualifying report from their approved alternative vendor, and the Department will not accept waiver requests from employers using an alternate vendor.

b. Any report, underlying data and analysis made by the alternate vendor pursuant to these rules must be made available to the Department upon the Department's written request. If an employer or the alternate vendor refuse to give reports, underlying data, and analysis to the Department, the Department may send written notice to the employer that its approval of the alternate vendor is withdrawn.

c. After receiving a complete application, the Department will make a decision to approve or deny the use of an alternate vendor and provide a formal written decision to the employer within ten business days. The Department will only approve if the use of an alternate vendor meets the requirements of this rule and 22 M.R.S. §9054.

d. Use of the vendor shall cease immediately upon the vendor's inability to conduct a comprehensive background check in compliance with this rule.

e. If the employer ceases to use the alternate vendor, then the employer must immediately begin use of the MBCC.

E.Quick check. Employers may opt to screen potential direct access workers by conducting a quick check prior to paying for a comprehensive background check. Search results indicating disqualifying offenses that preclude employment may be used to make employment decisions. If no disqualifying offenses result from this search, the employer shall initiate a comprehensive background check prior to making an employment decision.

F.Rap back monitoring. All direct access workers hired by employers as direct access workers are automatically enrolled in criminal record rap back monitoring, as a function of the MBCC search.

1.Automatic monitoring. Rap back monitoring automatically monitors direct access workers' criminal records for five years following a request for a comprehensive background check.

2.Update master list to cease monitoring. To cease rap back monitoring of a direct access worker, employers must update their master lists of direct access workers in the MBCC to indicate that worker is no longer employed by that employer.

G.Periodic subsequent comprehensive background checks. Employers must follow the same process used to obtain an initial comprehensive background check to obtain a periodic comprehensive background check. Subsequent comprehensive background checks must be obtained at least every five years following the date of hire or the anniversary date of a previous comprehensive background check.

H.Transfers and promotions. A background check must be completed on an individual who is currently employed in a position other than as a direct access worker when they are transferred or promoted into a position as a direct access worker, unless a comprehensive background check has already been conducted through the MBCC or an approved alternate vendor.

I.Disqualifying offenses. An individual with a disqualifying offense, including a disqualifying criminal conviction; substantiated complaint of abuse, neglect, or misappropriation of funds; or listing on a fraud or Sex Offender Registry as described below may not work as a direct access worker during the disqualification period.

1.Reports received from the Maine State Bureau of Identification (SBI). Unless specified otherwise in the licensing rule specific to the employer's work, pursuant to 22 M.R.S. §9054(11), the Table of Disqualifying Crimes below lists disqualifying criminal offenses by the class of crime (A-E) and the length of time following the conviction that adirect access worker may not be employed as a direct access worker:

Table of Disqualifying Crimes
Criminal Offense	Disqualification Periods
	30 Years	10 Years	5 Years
OFFENSES OF GENERAL APPLICABILITY (Attempt, Solicitation, and Conspiracy)
Criminal conspiracy	A, B, C
Criminal attempt	A	B, C
Aggravated attempted murder	A
Criminal solicitation	A, B, C
OFFENSES AGAINST THE PERSON
Murder	A
Felony murder	A
Manslaughter	A, C
Aiding or soliciting suicide	D
Assault	C
Domestic violence assault	C
Aggravated assault	A, B
Elevated aggravated assault	A
Elevated aggravated assault on a pregnant person	A
Domestic violence criminal threatening	C
Terrorizing	C
Stalking	B, C
Reckless conduct domestic violence	C
Aggravated reckless conduct	B
Violation of a protection order	C
Illegal sale and use of fetuses	C
Causing denial of rights of a mentally ill person	C
Causing unwarranted hospitalization of a person	E
SEX ASSAULTS
Gross sexual assault	A	B, C
Sexual abuse of a minor	C	D, E
Unlawful sexual contact	A	B, C	D, E
Visual sexual aggression against child	C	D
Contact with a child under 14 in a restricted zone	C	D
Sexual misconduct with a child under 14 years of age	C	D
Solicitation of a child to commit a prohibited act	C	D
Unlawful sexual touching	D
Failing to register as a sex offender	B, C	D
SEXUAL EXPLOITATION OF MINORS
Sexual exploitation of minor	A	B
Dissemination of sexually explicit material	A	B, C
Possession of sexually explicit material	B, C	D
KIDNAPPING AND CRIMINAL RESTRAINT
Kidnapping	A, B
Criminal restraint	C
Criminal restraint by parent	C
Causing unwarranted hospitalizations.	C
THEFT
Theft by unauthorized taking or transfer	B	C
Theft by deception	B	C
Insurance deception	B	C
Theft by extortion	C
Theft of lost, mislaid or mistakenly delivered property	B	C
Theft of services	B	C
Theft by misapplication of property	B	C
Receiving stolen property	B	C
Unauthorized use of property	B	C
Organized retail theft	C
BURGLARY
Burglary	A, B, C
Burglary of motor vehicle	C
FALSIFICATION IN OFFICIAL MATTERS
Tampering with a witness, informant, juror or victim	B, C
Falsifying physical evidence	D
Tampering with public records or information	D
OFFENSES AGAINST THE FAMILY
Abandonment of child	C
Endangering the welfare of a child	C
Endangering welfare of dependent person	C
Incest	C	D
ROBBERY
Robbery	A, B
FORGERY AND RELATED OFFENSES
Aggravated forgery	B
Forgery	B, C
Negotiating a worthless instrument	B, C
OFFENSES AGAINST PUBLIC ADMINISTRATION
Refusing to submit to arrest or detention	D
Assault on an officer/firefighter	C
Unlawful interference with law enforcement dogs	C, D
Assault on an emergency medical care provider	C
Unlawful interference with law enforcement horses	C, D
Hindering apprehension or prosecution	B, C
Obstructing criminal prosecution	C
Escape	B, C
ARSON AND OTHER PROPERTY DESTRUCTION
Arson	A
Causing acatastrophe	A
Aggravated criminal mischief	C
SEX TRAFFICKING, PROSTITUTION AND PUBLIC INDECENCY
Aggravated sex trafficking	B
Sex trafficking	C
Patronizing prostitution of minor/person with mental disability	C	D
FRAUD
Act or omission with the intent to defraud	C
Misuse of entrusted property	B, C
Misuse of identification	D
CRIMINAL USE OF EXPLOSIVES AND RELATED CRIMES
Criminal use of explosives	C
Criminal use of disabling chemicals	D
Criminal use of electronic weapon	D
DRUGS
Unlawful trafficking in scheduled drugs	B	C, D
Trafficking in or furnishing counterfeit drugs	C
Aggravated trafficking of scheduled drugs	A, B	C
Aggravated trafficking or furnishing of counterfeit drugs	B
Aggravated furnishing of scheduled drugs	B	C
Aggravated cultivating of marijuana	A, B	C
Aggravated unlawful operation of a meth laboratory	A
Unlawfully furnishing scheduled drugs	C
Unlawful operation of a methamphetamine laboratory	B
MOTOR VEHICLES
Eluding/passing a roadblock	B	C
Operating under the influence resulting in injury/death	B	C
Leaving the scene of accident with injury/death	C
Operating after suspension-accident with death	B

2. Comparable convictions for similar crimes in this and other jurisdictions result in disqualification as in the Table above.

3. A disqualifying offense includes any act that results in the direct access worker being listed on any of the following lists or registries at the time of application or thereafter. If there is a difference in length between the disqualification periods in the table above and a list or registry or between registries, and one of them results in a current disqualification, then whichever results in the current disqualification will control. Lists prohibiting employment include the following:

a. National Sex Offender Public Website;

b. Maine Sex Offender Registry;

c. Maine Registry of Certified Nursing Assistants and Direct Care Workers annotated list;

d. Federal Office of the Inspector General exclusion list;

e. MaineCare exclusion list; or

f. The exclusion list of any other applicable registries.

J.Reports

1. The MBCC or the approved alternate vendor shall issue background check reports in accordance with 22 M.R.S. §§ 9054(9) and(10).

2. Content of the Background Check Report: The content of the Background Check Report must include notice that the individual submitted for a background check has:

(a) no disqualifying offenses; or

(b) has a disqualifying offense(s); or

(c) a criminal charge without disposition that upon final disposition may result in a disqualifying offense. The background check report must include information specific to the individual along with information about the source and type of offense sufficient to allow the individual named in the report to challenge the information.

3. The background check report is considered preliminary until the individual subject to the background check has had the opportunity to challenge or decline to challenge the accuracy of the records obtained, after which the report shall be final, unless:

a. A direct access worker corrects an error pursuant to this rule, and the correction results in a new background check report that does not disqualify the direct access worker; or

b. An employer sponsors a waiver and that waiver is granted by the Department.

4. The MBCC or the approved alternate vendor may issue a new background check report regarding any direct access worker, when the MBCC or the approved alternate vendor:

a. Receives new information based on rap back monitoring that would result in a disqualification; or

b. The MBCC or the alternate vendor receives information which would result in the disqualification of a direct access worker who has a current report that does not disqualify him or her.

5. Any background check report issued by the MBCC or the approved alternate vendor supersedes a prior report and/or waiver granted to an employer and becomes final, except as above.

10- 144 C.M.R. ch. 60, § 3