‘Sec. 2. 22 MRSA §1717, as amended by PL 2003, c. 634, §§1 and 2 and c. 673, Pt. NN, §1, is further amended to read:
§ 1717. Registration of personal care agencies and placement agencies
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. "Activities of daily living" means tasks that are routinely performed by an individual to maintain bodily function, including, but not limited to, mobility; transfers in position among sitting, standing and prone positions; dressing; eating; toileting; bathing; and personal hygiene assistance.
B. "Hires and employs" means recruits, selects, trains, declares competent, schedules, directs, defines the scope of the positions of, supervises or terminates individuals who provide personal care.
B-1. "Home care services" means assistance with activities of daily living and related tasks.
C. "Personal care agency" means a business entity or subsidiary of a business entity that is not otherwise licensed by the Division of Licensing and Certification Regulatory Services and that hires and employs unlicensed assistive personnel to provide assistance with activities of daily living and related tasks to individuals in the places in which they reside, either permanently or temporarily. An individual who hires and employs unlicensed assistive personnel to provide care for that individual is not a personal care agency, except when permitted by rule of the department.
C-1. "Placement agency" means any person or entity engaged for gain or profit in the business of securing or attempting to secure home care services work for an individual or of securing or attempting to secure a home care services worker for a consumer. "Placement agency" includes, but is not limited to, employment agencies, nurse registries and any other entity that places a home care services worker for hire by a consumer in that consumer's temporary or permanent residence for purposes of providing home care services.
D. "Unlicensed assistive personnel" means individuals employed to provide hands-on assistance with activities of daily living to individuals in homes, assisted living centers, residential care facilities, hospitals and other health care settings. "Unlicensed assistive personnel " does not include certified nursing assistants employed in their capacity as certified nursing assistants.
2. Registration of personal care agencies and placement agencies. Beginning August 1, 1998, a personal care agency not otherwise licensed by the department shall register with the department. The annual registration fee is $25 Beginning January 1, 2008, a placement agency not otherwise licensed by the department shall register with the department. The department shall adopt rules establishing the annual registration fee, which must be at least $25.
3. Prohibited employment. A personal care agency or a placement agency shall obtain criminal history record information about applicants for positions as unlicensed assistive personnel or home care services workers and may not hire or place an individual who:
A. Has worked as a certified nursing assistant and has been the subject of a notation by the state survey agency for a substantiated complaint of abuse, neglect or misappropriation of property in a health care setting that was entered on the Maine Registry of Certified Nursing Assistants;
B. Has been convicted in a court of law of a crime involving abuse, neglect or misappropriation of property in a health care setting; or
C. Has a prior criminal conviction within the last 10 years of:
(1) A crime for which incarceration of 3 years or more may be imposed under the laws of the state in which the conviction occurred; or
(2) A crime for which incarceration of less than 3 years may be imposed under the laws of the state in which the conviction occurred involving sexual misconduct or involving abuse, neglect or exploitation in a setting other than a health care setting.
4. Penalties. The following penalties apply to violations of this section.
A. A person who operates a personal care agency or placement agency without registering with the department as required by subsection 2 commits a civil violation for which a fine of not less than $500 per day of operation but not more than $10,000 may be adjudged. Each day of violation constitutes a separate offense.
B. A person who operates a personal care agency or placement agency in violation of the employment prohibitions in subsection 3 commits a civil violation for which a fine of not less than $500 per day of operation in violation but not more than $10,000 per day may be adjudged, beginning on the first day that a violation occurs. Each day of violation constitutes a separate offense.
5. Injunctive relief. Notwithstanding any other remedies provided by law, the Office of the Attorney General may seek an injunction to require compliance with the provisions of this section.
6. Enforcement. The Office of the Attorney General may file a complaint with the District Court seeking civil penalties or injunctive relief or both for violations of this section.
7. Jurisdiction. The District Court has jurisdiction pursuant to Title 4, section 152 for violations of this section.
8. Burden of proof. The burden is on the department to prove, by a preponderance of the evidence, that the alleged violations of this section occurred.
9. Right of entry. This subsection governs the department's right of entry.
A. An application for registration of a personal care agency or placement agency constitutes permission for entry and inspection to verify compliance with applicable laws and rules.
B. The department has the right to enter and inspect the premises of a personal care agency or placement agency registered by the department at a reasonable time and, upon demand, has the right to inspect and copy any books, accounts, papers, records and other documents in order to determine the state of compliance with applicable laws and rules.
C. To inspect a personal care agency or placement agency that the department knows or believes is being operated without being registered, the department may enter only with the permission of the owner or person in charge or with an administrative inspection warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the District Court authorizing entry and inspection.
10. Administrative inspection warrant. The department and a duly designated officer or employee of the department have the right to enter upon and into the premises of an unregistered personal care agency or placement agency with an administrative inspection warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the District Court at a reasonable time and, upon demand, have the right to inspect and copy any books, accounts, papers, records and other documents in order to determine the state of compliance with this section. The right of entry and inspection may extend to any premises and documents of a person, firm, partnership, association, corporation or other entity that the department has reason to believe is operating without being registered.
11. Noninterference. An owner or operator of an unregistered personal care agency or placement agency may not interfere with, impede or obstruct an investigation by the department, including but not limited to interviewing persons receiving services or persons with knowledge of the agency.
12. Violation of injunction. A person, firm, partnership, association, corporation or other entity that violates the terms of an injunction issued under this section shall pay to the State a fine of not less than $500 nor more than $10,000 for each violation. Each day of violation constitutes a separate offense. In any action brought by the Office of the Attorney General against a person, firm, partnership, association, corporation or other entity for violating the terms of an injunction under this section, the District Court may make the necessary orders or judgments regarding violation of the terms of the injunction.
In an action under this section, when a permanent injunction has been issued, the District Court may order the person, firm, partnership, association, corporation or other entity against which the permanent injunction is issued to pay to the General Fund the costs of the investigation of that person, firm, partnership, association, corporation or other entity by the Office of the Attorney General and the costs of suit, including attorney's fees.
13. Suspension or revocation of registration. A personal care agency or placement agency found to be in violation of this section may have its registration to operate as a personal care agency or placement agency suspended or revoked. The department may file a complaint with the District Court requesting suspension or revocation of a registration to operate a personal care agency or placement agency.
14. Rules. The department may adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.’