10-144-60 Me. Code R. § 4

Current through 2024-51, December 18, 2024

Section 144-60-4 - ERROR CORRECTIONS AND WAIVERS

A.Conditional employment. The employer shall notify each direct access worker of the results of the MBCC or approved alternate vendor comprehensive background check report.

1. The employer shall record the date when the results of the report regarding eligibility for hire are provided to the direct access worker.

2. An employer may hire a direct access worker or retain a grandfathered direct access worker on a conditional basis by meeting the requirements of 22 M.R.S. §§9057(4) and 9058(3) and this rule.

3. An employer may continue conditional employment when that direct access worker pursues an error correction, or when the employer sponsors a waiver request. A direct access worker retained on a conditional basis must be under direct personal supervision during conditional employment.

B.Error corrections. If an direct access worker believes the comprehensive background check report contains an error, the direct access worker may challenge the accuracy of the information believed to be in error as follows.

1.Records created or generated outside the MBCC. The error correction process described in this paragraph applies to records created or generated by entities other than the MBCC.

a. Direct access workers must follow any instructions provided by the employer or the entity responsible for creating or generating the records containing the error, such as the SBI, other applicable databases and registries or a professional licensing entity.

b. If the entity responsible for creating or generating the records corrects an error, the employer may access the Department's background check system to verify any updated information.

c. If the SBI notifies the MBCC of the correction of an error, the MBCC shall notify the employer of the error correction and provide a corrected comprehensive background check report to the employer and notify the direct access worker.

d. If errors are not corrected by the end of the 60 days of conditional employment, employers are prohibited from employing the direct access worker unless they obtain a waiver or until the error is corrected and a non-disqualifying report is issued.

2.Records created or generated by the MBCC or an approved alternate vendor. The error correction and challenge process described in this paragraph applies to records created or generated by the MBCC or approved alternate vendor.

a. Direct access workers must submit a request to correct information in records created or generated by the MBCC or approved alternate vendor within ten days after the MBCC or approved alternate vendor issues the notice of disqualification to their employer.

b. Requests must be made in writing and directed to the Department, and must specify what information is in error.

c. The Department will issue its decision in writing within ten days of the request. The decision may be appealed, in accordance with Section 6(D)(1) of this rule.

d. If errors are not corrected by the end of the 60 days of conditional employment, employers are prohibited from employing the direct access worker unless they obtain a waiver or until the error is corrected and a non-disqualifying report is issued.

C.Waivers. If a direct access worker has a disqualifying criminal conviction listed in the table in Section 3(I)(1) or in Section 3(I)(2) of this rule on his or her comprehensive background check report, employers may only employ the direct access worker if they obtain a waiver from the Department. Direct access workers and employers must comply with the provisions in this sub-section to obtain a waiver from the Department.

1. An employer may not request a waiver of a direct access worker's disqualification for employment due to the direct access worker's appearance on any disqualification list cited in Section 3(I)(3) of this rule. A direct access worker shall appeal directly to the listing entity to correct any perceived error.

2. Employers must consider all of the below factors in determining whether to sponsor a waiver:

a. Age of the direct access worker applying for a waiver;

b. The amount of time passed since the disqualifying offense occurred;

c. The total number and type of disqualifying offenses;

d. Any proven mitigating circumstances surrounding the disqualifying offense;

e. Objective evidence that the direct access worker has successfully completed a criminal rehabilitation program;

f. The relevance of the circumstances pertaining to the disqualifying offense with respect to the nature of the proposed employment;

g. The length and consistency of similar employment post-conviction (if applicable);

h. Whether the direct access worker is bonded under federal or State law; and

i. Personal references or recommendations from employers on behalf of the direct access worker.

3. If the employer has considered all the required factors above and, following this consideration, has determined that sponsoring a waiver is appropriate, then the employer must request the waiver through the MBCC by meeting the following criteria:

a. The direct access worker must complete the waiver request form provided on the MBCC website.

b. The employer must attest that it considered the above factors required to employ the direct access worker conditionally and sponsor a waiver, including:

i. The nature and gravity of the disqualifying offense or offenses;

ii. The time that has passed since the disqualifying offense or offenses;

iii. The nature of the employment held or sought; and

iv. Whether the criminal conduct was employment-related.

c. The employer must submit the waiver request form to the Department and attest that it is objectively reasonable to conclude that the direct access worker is unlikely to cause harm to a protected individual or others in the employer's care, and that a denial of the waiver is not otherwise warranted in accordance with State or federal law. The employer must submit the waiver request in accordance with instructions provided on the MBCC website within 30 days of the date of the disqualifying letter.

4. The MBCC will only approve waivers where the employer has attested that they reasonably determined that the health and safety of a protected individual is not in jeopardy and a denial of a waiver request is not otherwise warranted in accordance with State or federal law. (See 22 M.R.S. §9054(14)) .The Department shall consider the following:

a. The passage of time;

b. The demonstration of the direct access worker's rehabilitation;

c. The facts and circumstances of the conviction; and

d. The relevancy of the particular disqualifying offense to the current or prospective employment.

5. Within ten business days of receiving the waiver request, the MBCC will issue a written determination letter including the reason for the decision to the employer and direct access worker by email or, if no email address is on record, by mail.

a. A waiver shall only allow the employment of the direct access worker by the sponsoring employer in the position identified in the background check system. Waivers are not transferrable to a new employer.

b. If the waiver request is denied, the direct access worker may appeal the decision, in accordance with Section 5(E)(1) of this rule.

c. The Department may revoke a waiver when the waiver was based on false or substantially incorrect information.

10-144 C.M.R. ch. 60, § 4