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The 191st General Court of the Commonwealth of Massachusetts

Section 7: Issuance of license or approval to persons or department, agency and institution meeting applicable standards and requirements; provisional license or approval

Section 7. (a) The department shall issue and may renew a license to any person other than a department, agency or institution of the commonwealth or any political subdivision thereof, who meets applicable standards and requirements to establish and maintain or to assist in the establishment and maintenance of a school-aged child care program, a child care center, a family child care home, a placement agency, a large family child care home or family foster care which is not supervised and approved by a placement agency, group care facility or temporary shelter facility.

[Paragraphs (i) and (ii) of subsection (a) applicable as provided by 2018, 202, Sec. 27.]

(i) As part of the department's licensing and background record check process, the department, prior to issuing any license, shall: (1) obtain from the sex offender registry board all available sex offender registry information, including all registration forms and documents maintained by the sex offender registry board considered necessary by the department to investigate background record checks or licensing violations, associated with the address of the program, center, facility or home; and (2) conduct fingerprint-based checks of the state and national criminal history databases, as authorized by Public Law 92–544. The fingerprint-based checks shall be conducted on any current holder of or applicant for a family child care assistant certificate or any current holder of or applicant seeking a license for: family child care; small group and school age child care; large group and school age child care; a residential program; or a placement agency. The fingerprint-based checks shall also be required for any household member, age 15 or older, or any person, age 15 or older, regularly on the premises of applicants for family child care licensure and for all caregivers or programs in receipt of federal funding pursuant to 42 U.S.C. section 9858, consistent with the federal requirements of 42 U.S.C. section 9858f, and department regulations or policies consistent with federal and state law. Authorized department staff may receive all criminal offender record information and the results of checks of state and national criminal history databases pursuant to Public Law 92–544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information. Additionally, the department shall obtain all available criminal offender record information through the department of criminal justice information services consistent with clause (13) of subsection (a) of section 172 of chapter 6 and section 172F of said chapter 6, and all supported findings and pending investigations of abuse or neglect available through the department of children and families consistent with sections 51B, 51E, and 51F of chapter 119.

(ii) As part of the department's licensing and background record check process, the department or an agency authorized by the department shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by Public Law 92–544, to determine the suitability of all current and prospective candidates for employment, internships and volunteer positions, whether or not those candidates have unsupervised access to children, and any additional individuals with unsupervised access to children in department-licensed or funded programs, unless specifically exempt by department regulations or policies. These requirements shall also apply to individuals with unsupervised access to children in programs subject to 42 U.S.C. section 9858f. The department shall outline in its regulations or policies the circumstances under which candidates within department-licensed and funded programs shall complete a background record check through the department regardless of the candidate's unsupervised access to children. The fingerprint-based checks shall also be required to determine the suitability of an individual who provides transportation services on behalf of a department-licensed or funded program. Authorized department staff may receive criminal offender record information and the results of checks of state and national criminal history databases pursuant to Public Law 92–544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.

(iii) As part of the department's licensing and background record check process, the department or adoptive or foster placement agency licensed by the department shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by 42 U.S.C. section 16962, for all applicants to be adoptive or foster parents and their household members age 15 or older with the exception of those applicants and household members subject to section 26A of chapter 119. Authorized department staff or staff within an authorized adoptive or foster placement agency licensed by the department may receive all criminal offender record information and the results of checks of state and national criminal history databases, pursuant to 42 U.S.C. section 16962. When the department or an authorized adoptive or foster placement agency obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.

(b) The department shall issue approval to a department, agency, or institution of the commonwealth or any political subdivision thereof which it determines meets the applicable standards and requirements to establish and maintain a child care center, family child care home or large family child care home, placement agency, group care facility or temporary shelter facility.

As part of the department's approval process, the department or an agency authorized by the department, prior to issuing an approval, shall: (i) obtain from the sex offender registry board all available sex offender registry information, including all registration forms and documents maintained by the sex offender registry board considered necessary by the department to investigate background record checks or licensing violations, associated with the address of the center, home or facility; and (ii) conduct fingerprint-based checks of the state and national criminal history databases, pursuant to Public Law 92–544, that are required under this subsection.

[Third paragraph of subsection (b) applicable as provided by 2018, 202, Sec. 27.]

The fingerprint-based checks of the state and national criminal history databases shall be conducted, pursuant to Public Law 92–544, to determine the suitability of all current or prospective candidates for employment, internships and volunteer positions, whether or not those candidates have unsupervised access to children, and any additional individuals with unsupervised access to children in department-approved programs, unless specifically exempt by department regulations or policies. These requirements shall also apply to individuals with unsupervised access to children in programs subject to 42 U.S.C. section 9858f. The fingerprint-based checks shall also be required to determine the suitability of an individual who provides transportation services on behalf of a department-approved program. Authorized department staff may receive criminal offender record information and the results of checks of state and national criminal history information databases pursuant to Public Law 92–544. When the department obtains the results of checks of state and national criminal information databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.

[Subsections (c) to (e) applicable as provided by 2018, 202, Sec. 27.]

(c) With respect to department-licensed, approved and funded child care programs and any other program subject to 42 U.S.C. section 9858, additional background record checks shall be required by the department's regulations or policies consistent with federal and state law.

(d) The department may issue a provisional license for or may provisionally approve a school-aged child care program, a child care center, family child care home or large family child care home, family foster care which is not supervised and approved by a placement agency, placement agency, group care facility or temporary shelter facility, which has not previously operated, or is operating, but is temporarily unable to meet applicable standards and requirements. A provisional license or approval shall be issued for a period of not more than 6 months, and a person shall not operate under a provisional license, provisional approval, or renewal thereof for more than 12 consecutive months.

(e) Nothing in this section shall be construed to create a private right of action if a provider has acted in accordance with this section.