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The 191st General Court of the Commonwealth of Massachusetts

Section 8: Adoption of regulations by board; classifications for licensure or approval; medical treatment exemptions; fines; consultation; report

Section 8. (a) The board shall adopt regulations relative to the requirements for licensure and approval of school-aged child care programs, child care centers, family child care homes or large family child care homes and family foster care which is not supervised and approved by a placement agency, placement agencies, group care facilities or temporary shelter facilities. These regulations shall be appropriate for the protection of the health, well-being and development of children and shall include, but need not be limited to, provisions relative to: (1) admission policies and procedures; (2) safe transport of children; (3) physical plant and equipment; (4) the number and qualifications of staff; (5) the nature of programs of care or treatment; (6) behavior management and child guidance policies and procedure; (7) health care and nutrition; (8) rights and responsibilities of parents, children and staff; (9) record keeping and other procedures relevant to evaluation including, but not limited to, reports by placement agencies detailing the number and nature, as defined jointly by the University of Massachusetts center for adoption research and policy in the city of Worcester and the department of children and families, of adoptions processed during each calendar quarter to be filed with the center on or before January 30 annually; (10) organization, financing and administration; and (11) the imposition of civil fines and other sanctions. The board shall consult with the board of elementary and secondary education and the executive offices of public safety and health and human services before adopting these rules and regulations. The board shall submit any rules and regulations, or revisions to them, to the joint committee on education for review and comment at least 60 days before adoption.

(b) The regulations may establish classifications for department-licensure, approval or funding that are necessary to achieve the purposes of this section, but the standards and requirements for approval of a child care center, family child care home or large family child care home, placement agency, group care facility, or temporary shelter operated by a department, agency or institution of the commonwealth or any political subdivision thereof shall be the same as or higher than those applicable to the licensure of comparable facilities or services. The regulations shall establish reasonable license fees and appropriate terms for all licenses granted under this section. No license or approval shall be transferable.

(c) The regulations, as they relate to standards and requirements for licensure and approval of large family child care homes, shall include, but not be limited to, appropriate standards for: 1 or more approved assistants as provided in this chapter; additional floor space; staff-to-child ratios for multiple age and size groupings; limitations on the number of infants in care at 1 time; the hours of school-aged care; the number and age of school-aged children cared for; a prerequisite that a provider have at least 3 years of experience in licensed family child care and have completed at least 5 hours of specialized training before licensure as a large family child care provider and at least 10 hours of training each subsequent year. In formulating the regulations pertinent to family child care homes, large family child care homes and family foster care, the department shall give special attention to fire and safety precautions.

(d) The timing, scope and nature of the department's background record check process shall be established by the board in its regulations or policies, consistent with federal and state law. Nothing in this section shall prevent the department from completing the background record check process in a shorter amount of time than that required by federal or state law. The regulations shall provide that:

(i) a person providing child care or support services or with unsupervised access to children in a program or facility licensed, approved or funded by the department and household members, age 15 or older, or persons regularly on the premises, age 15 or older, of family child care and large family child care homes shall be subject to a background record check not less than every 3 years in accordance with regulations established by the department; provided, however, that a candidate for employment in a department-licensed, approved or funded program who is subject to a fingerprint-based check of the state and national criminal history databases for the same employer that is approved pursuant to chapters 19B or 71B shall submit to a fingerprint-based check under regulations established by the department; provided further, that a person who is considered suitable by the department shall not be subject to more than 1 fingerprint-based check every 3 years to maintain employment with the same employer that is department-licensed, approved or funded pursuant to this chapter and is subject to said chapters 19B or 71B, and shall not be subject to duplicative fingerprint-based checks for the same employer when fingerprinted for the department first unless an exception described in the regulations or policies of the department applies or an increased frequency is required by state or federal law; and provided further, that the department shall only determine whether an applicant is suitable for affiliation with a department-licensed, approved or funded program.

(ii) potential adoptive and foster parents and their household members age 15 or older shall be subject to fingerprint-based checks of the state and national criminal history databases pursuant to 42 U.S.C. section 16962 with the exception of those applicants and household members who are subject to section 26A of chapter 119; and

(iii) an applicant for a department-issued license, approval or funding and a candidate for employment, internship or volunteer position in a department-licensed, approved or funded program shall be subject to a fingerprint-based check of the state and national criminal history databases pursuant to Public Law 92–544.

The board shall adopt regulations establishing that the following individuals shall be subject to a sex offender registry information check pursuant to sections 178I and 178J of chapter 6: (1) each person defined as an applicant of a department-licensed, approved or funded program; (2) individuals who are providing child care or support services with unsupervised access to children in a program or facility licensed, approved or funded by the department when mandated by department regulations or policies consistent with federal and state law; (3) household members, age 15 or older, or persons regularly on the premises, age 15 or older, of family child care and large family child care homes; (4) prospective adoptive and foster parents and their household members age 15 or older, except those applicants and household members subject to section 26A of chapter 119; (5) department-funded caregivers or candidates for employment, internships or volunteer positions within programs in receipt of federal funding pursuant to 42 U.S.C. section 9858, consistent with department regulations or policies; and (6) an individual who provides transportation services on behalf of a department-licensed, funded or approved program. The regulations shall establish the conditions upon which the department may deny an application for a license, a license renewal or approval, employment or department funding and upon which the department may deny prospective adoptive and foster parents based upon the information obtained from the sex offender registry check. The board shall adopt regulations establishing an address search of the sex offender registry for the purposes of licensing and license renewal or approval of school-aged child care programs, child care centers, family child care homes, placement agencies or large family child care homes, family foster care that is not supervised and approved by a placement agency, group care facilities or temporary shelter facilities, including the conditions under which the department may deny an application for a license, license renewal, approval or funding based upon the information obtained from the address search of the sex offender registry.

(e) Any rule or regulation involving medical treatment shall include appropriate exemptions for children whose parents object to such treatment on the ground that it conflicts with the tenets and practice of a recognized church or religious denomination of which the parent or child is an adherent or member. The regulations shall require that each child care program licensed or approved by the department shall obtain from a parent or guardian of a child in care under the age of 6 years, but not less than 2 years of age, a statement, signed by a physician or an employee of a health care agency, that the child has been screened for lead poisoning. This statement shall be obtained upon the child's enrollment if the child is 2 years of age or older or at the time the child reaches 2 years of age.

(f) The regulations shall require that any person who operates a school-age child care program, as defined in section 2 of chapter 132B, or a child care center shall comply with the requirements regarding pesticide applications as set forth in sections 6C to 6I, inclusive of said chapter 132B.

(g) Fines authorized by this section shall range from $50 to $1,000. In no case shall a fine imposed on a family child care home, large family child care home or child care center exceed a maximum fine of $250 per violation.

(h) The department shall provide consultation to assist applicants in meeting its requirements for licensure or approval, and in meeting other applicable state and local requirements relative to fire, safety, and zoning codes.

(i) The board shall conduct a comprehensive review of rules and regulations established under this section at least once every 5 years.

[First to third paragraphs of subsection (j) applicable as provided by 2018, 202, Sec. 27.]

(j) Fingerprints, as referenced in subsections (a) and (b) of section 7 and subsection (d), shall be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check, according to the policies and procedures established by the identification section of the department of state police and by the department of criminal justice information services. Fingerprint submissions may be retained by the Federal Bureau of Investigation, the identification section of the department of state police and the department of criminal justice information services to assist the department of early education and care in the department's review of suitability for initial or continued licensure, certification, approval or funding. The department of criminal justice information services may disseminate the results of a state and national criminal history check to the department of early education and care to determine the suitability of: (i) a current holder of or applicant for a family child care, small group and school age, large group and school age and residential and placement license or family child care assistant certificate; (ii) current and prospective candidates for employment, internships and volunteer positions in a department-licensed, approved or funded program consistent with department regulations or policies and with federal and state law; (iii) household members, age 15 or older, or all persons, age 15 or older, regularly on the premises, of current family child care providers and applicants for family child care licensure; (iv) department-funded caregivers or candidates within programs in receipt of federal funding pursuant to 42 U.S.C. section 9858, consistent with department regulations or policies; and (v) an individual who is a current or prospective provider of transportation services on behalf of, or who has unsupervised access to children in, a department-licensed, approved or funded program, consistent with department regulations or policies. If the department receives information from a background record check that does not include a final disposition or is otherwise incomplete, the department may request that a candidate, either new or renewing, provide additional information to assist the department in determining the suitability of the individual for licensure, certification, approval, funding or employment. The department of criminal justice information services may disseminate the results of a state and national criminal history check to the adoption and foster placement agencies licensed by the department for purposes of evaluating all adoptive or foster parent applicants and their household members age 15 or older, with the exception of those applicants and household members subject to section 26A of chapter 119.

The board of early education and care shall, in a manner provided by law and under this chapter, promulgate regulations necessary to carry out this subsection. The regulations shall address the circumstances under which a licensed, approved or funded program may hire an individual in provisional status consistent with this section, the department's regulations or policies and the federal requirements of 42 U.S.C. section 9858f.

For the purposes of this subsection, ''provisional status'' shall mean the standing of a candidate for employment, an internship or a volunteer position with a department-licensed, approved or funded program, or a candidate who has access to children in those programs, who the department preliminarily approves to have supervised access to children after obtaining the results of a state and national fingerprint-based criminal history check and required sex offender checks consistent with federal and state law and the department's regulations or policies. A candidate may be hired by the employer in provisional status if the employer determines that hiring the candidate is necessary and authorized by department regulations or policies. Candidates in provisional status shall adhere to the requirements in department regulations or policies. If a program or transportation provider seeks to hire a candidate in provisional status, the department may request that the candidate provide additional information regarding the individual's history of criminal convictions, if any, to assist the department in determining the individual's suitability for provisional status; provided, however, that access to children shall not occur prior to the program or transportation provider obtaining the results of a fingerprint-based state and national criminal check and all sex offender registry information checks pursuant to sections 178I and 178J of chapter 6, mandated by 42 U.S.C. section 9858f and consistent with federal and state law and department regulations and policies.

The department of criminal justice information services shall disseminate the results of the criminal background check to the department. The department of criminal justice information services shall only disseminate information under this section that would otherwise be available to requesting entities pursuant to sections 167 to 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information.

(k) The board shall adopt regulations establishing the conclusiveness of information obtained by the department in an address search of the sex offender registry for purposes of licensing, license renewal or approval of school-aged child care programs, child care centers, family child care homes, placement agencies or large family child care homes, family foster care that is not supervised and approved by a placement agency, group care facilities or temporary shelter facilities, including the conditions in which the address search of the sex offender registry shall be sufficient cause for the department to deny an application for a license, license renewal or approval.

[Subsection (l) applicable as provided by 2018, 202, Sec. 27.]

(l) All persons required to submit fingerprints pursuant to this chapter, including, but not limited to: (i) a current holder of or applicant for a family child care, small group and school age, large group and school age and residential and placement license, or family child care assistant certificate; (ii) current and prospective candidates for employment, internships and volunteer positions in department-licensed, approved or funded programs, consistent with department regulations or policies; (iii) household members, age 15 or older, or persons, age 15 or older, regularly on the premises of current family child care providers and applicants for family child care licensure; (iv) department-funded caregivers or candidates within programs in receipt of federal funding pursuant to 42 U.S.C. section 9858, consistent with department regulations or policies; (v) adoptive or foster parent applicants and their household members age 15 or older, with the exception of those applicants and household members subject to section 26A of chapter 119; and (vi) a current or prospective candidate who provides transportation services on behalf of, or who has unsupervised access to children in, a department-licensed, approved or funded program, consistent with department regulations or policies, shall pay a fee, to be established by the secretary of administration and finance, in consultation with the secretary of public safety and security and the commissioner, to offset the costs of operating and administering a fingerprint-based criminal background check system. The fee shall not be more than 35 dollars per person. The secretary of administration and finance, in consultation with the secretary of public safety and security and the commissioner, may increase the fee accordingly if the Federal Bureau of Investigation increases its fingerprint background check service fee. The department-licensed, approved or funded programs may reimburse candidates for employment, internships or volunteer positions, for all or a portion of the fee on the grounds of financial hardship. Fees collected from fingerprinting activity pursuant to this chapter shall be deposited into the Fingerprint–Based Background Check Trust Fund, established by section 2HHHH of chapter 29.

(m) The department's review process into a person's presumptive and discretionary disqualifications shall include an opportunity for the person to address department personnel, if requested by the person, about any disqualifications. Upon receipt of such a request, it shall be within the discretion of the department to conduct a telephone interview, in-person interview or to accept a written statement by the person to make a final suitability determination.

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