1.Bureau responsibilities.
The bureau is responsible for working with the Background Check Center and federal and state agencies to facilitate background checks.
2.Employer obligations.
An employer subject to this chapter shall use the Background Check Center to conduct a comprehensive background check that includes a criminal history records check for all direct access workers. The employer shall comply with the requirements of this chapter, including, but not limited to, a biometric identifier-based background check, when making employment-related decisions for direct access workers.
3.Direct access worker information.
An employer seeking to hire, place or continue to employ an individual as a direct access worker shall:
4.Placed or temporary direct access workers.
A temporary nurse
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1.
Bureau responsibilities.
The bureau is responsible for working with the Background Check Center and federal and state agencies to facilitate background checks.
2.
Employer obligations.
An employer subject to this chapter shall use the Background Check Center to conduct a comprehensive background check that includes a criminal history records check for all direct access workers. The employer shall comply with the requirements of this chapter, including, but not limited to, a biometric identifier-based background check, when making employment-related decisions for direct access workers.
3.
Direct access worker information.
An employer seeking to hire, place or continue to employ an individual as a direct access worker shall:
4.
Placed or temporary direct access workers.
A temporary nurse agency, personal care agency or placement agency engaged in the business of securing or attempting to secure direct access employment for individuals or of securing or attempting to secure a direct access worker for placement with another provider shall:
5.
Subsequent background check; 5 years.
An employer shall conduct a periodic subsequent background check in accordance with rules adopted pursuant to this chapter. Criminal history record checks for all direct access workers using a biometric identifier must be completed every 5 years subsequent to the anniversary date of a previous background check completed through use of the Background Check Center.
6.
Notice.
An employer shall provide a department-approved notice to each individual who is required to participate in a background check.
7.
Providers; mandatory use.
Use of the Background Check Center is mandatory for the following providers:
8.
Background Check Center responsibilities.
The Background Check Center's responsibilities include the following:
9.
Background check reports.
A background check report under this chapter 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 is considered final.
10.
Background check report content.
The background check report must inform an employer whether the individual submitted for a background check is eligible for employment as a direct access worker. The background check report must include information specific to the individual along with:
11.
List of disqualifying offenses.
The department shall adopt rules under section 9065 in accordance with the requirements of this chapter and other federal and state laws to create and maintain a list of disqualifying offenses that adversely affect an individual's eligibility for employment as a direct access worker. Disqualifying offenses that prohibit employment as a direct access worker include, but are not limited to:
12.
Appeal by individual.
The department shall establish procedures in accordance with the provisions of the Maine Administrative Procedure Act to ensure that each individual submitted for a background check in compliance with this chapter has the opportunity to challenge and correct errors in records created and generated by the Background Check Center. The subject of a state criminal record check may inspect and review criminal history record information pursuant to Title 16, section 709. The subject of a Federal Bureau of Investigation criminal history record check may obtain a copy of a criminal history record check by following the procedures outlined in 28 Code of Federal Regulations, Sections 16.32 and 16.33.
13.
Waiver; disqualifying offense.
In the event that no other federal or state law mandates an employment prohibition by an employer subject to this chapter, an individual who is banned from employment because of a disqualifying criminal offense may initiate a request for a waiver under subsection 8, paragraph H in accordance with a process established by rules adopted pursuant to this chapter under the following circumstances:
14.
Approval of waiver.
The department shall specify in rule the criteria for issuing a waiver for a disqualifying offense. The waiver determination is based on a consideration of the facts and circumstances of the specific individual's criminal history that include the passage of time, extenuating circumstances, a demonstration of rehabilitation and the relevancy of the particular disqualifying offense with respect to the current or prospective employment with a sponsoring employer. All waivers are contingent on a final determination by the department that the employer has 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 federal or state law. A waiver is applicable only to the requesting employer and is not transferable between employers.
15.
Waivers; factors.
The department shall specify in rule the minimum factors that an employer must consider when sponsoring a waiver under subsection 13. Any factors that an employer chooses to consider must be objectively reasonable in supporting the attestation that the individual to whom the waiver would apply is unlikely to cause harm to a protected individual or others in the employer's care. Objectively reasonable factors include:
16.
Denial or revocation of waiver.
The department shall establish by rule informal and formal review procedures for denial or revocation of a waiver. Denial or revocation of waiver procedures must comply with the Maine Administrative Procedures Act and final determinations may be appealed pursuant to the Maine Administrative Procedures Act in Title 5, Part 18, Chapter 375, subchapter 4. Rules concerning the denial or revocation of waiver procedures include, but are not limited to, the following:
17.
Immunity.
A provider that denies employment for an individual selected for hire or continued employment as a direct access worker, including during any period of conditional employment, and that reasonably relies upon information obtained through a final background check report regarding the individual is not liable in an action brought by the individual based on an employment determination resulting from the information.
18.
Presumption of good faith.
In a proceeding regarding immunity from liability, there is a rebuttable presumption of good faith.