10-148-32 Me. Code R. § 2

Current through 2024-51, December 18, 2024

Section 148-32-2 - LICENSING REQUIREMENTS AND PROCEDURES

A.Licensing

1. No person or entity may operate a Child Care Facility for more than two Children without a license from the Department in force, authorizing such operation, in accordance with 22 MRS §7801(1)(E).

2. The Child Care Facility must post the following, where easily seen, at the Child Care Facility:

a. The current license issued by the Department;

b. The results of the most recent inspection, showing any violations of this rule;

c. Any enforcement actions, including a Directed Plan of Action or a Conditional License; and

d. Any notices or correspondence required by the Department to be posted, including but not limited to water test results or any lead hazard assessment.

e. The Department will post inspection reports to a website available to the general public, for a running period of three years, in accordance with 42 CFR § 98.33(4).

3. The Child Care Facility shall be responsible for assuring compliance with all relevant State and federal statutes and regulations, and this rule.

a. All personnel and interns working in a Child Care Facility are responsible for complying with this rule.

4. Licenses are only effective at the location for which they are issued. If the Child Care Facility moves to another location, a new license must be issued prior to operation.

a. A license may not be transferred from one Child Care Facility to another.

b. In the event of an unanticipated occurrence, such as a fire, that renders an approved location uninhabitable, a Child Care Facility may provide services in an alternative location upon approval by the Department, in accordance with the Department of Health and Human Services' Child Care Emergency Plan.

c. The alternative location must also be approved by the State Fire Marshal's Office or Child Care Facility's local fire department prior to the provision of Child care services.

5. When two (2) or more buildings are or will be utilized to accommodate a Child Care Facility operated by the same person, the person must apply to the Department for a single license covering all the buildings, provided that:

a. The buildings are on the same or contiguous properties, and the Department determines that the issuance of a single Child Care Facility license would not be detrimental to the health, safety, well-being, and development of the Children served;

b. The facilities must have the same Director.

6. No Child Care Facility shall care for more Children than the license allows. Child Care Facilities must only care for Children within the age range of the license issued and within the proper staff-Child ratios for those age ranges.

a. Changes in capacity or age range may be made at the discretion of the Department, and when necessary, with the approval of the local code enforcement and the State Fire Marshal's Office.

b. The license may be amended or reissued to increase or decrease the number of Children allowed or to change the age range of Children that may be cared for by the Child Care Facility.

B.Qualifications of the Applicant and Director. The Applicant and proposed Director must demonstrate their willingness and ability to operate and manage the Child Care Facility with mature judgment, compassionate regard for the best interests of Children and consistent compliance with these regulations and all relevant laws. In making this determination, the Department shall consider each of the following factors to the extent that they are relevant to the proposed Applicant and Director of the Child Care Facility:

1. Record and reputationof honest and lawful conduct in business and personal affairs, including but not limited to:

a. Arrests, indictments or convictions;

b. Investigation by Child Protective Services or the Out-of-Home Investigation Unit of the Department;

c. The removal of Children from the Applicant's or Director's care or custody by court order;

d. Any protection from abuse order or any other order that makes a finding of domestic abuse or family violence; and/or

e. Any prior licensing investigations, conditional licenses, license suspensions, application denials, fines and/or revocations regarding a Child care license or approval issued to the Applicant or Director.

2. Conduct which demonstrates an understanding of, and compliance with this rule;

3. Information which relates to the ability or willingness to comply with all applicable laws and rules;

4. Any information reasonably related to the ability to provide safe and developmentally appropriate Child care;

5. Relevant experience, including the capacity to manage the financial operations and staff of the Child Care Facility for which the license is sought; experience in the field of Child care, Child development or areas related to the provision of Child care services.

6. The applicant must authorize the Department to review the records of the following entities to determine compliance with this rule, as part of the license application and renewal processes: criminal history and driving record, when applicable; court records; Maine and national sex offender registries; Child Protective Services, and Out of Home Investigations.

C.Application

1. Application for an initial license must be made to the Department of Health and Human Services, on forms furnished by the Department, and the appropriate fee must be included.

a. The check must be made payable to the Treasurer, State of Maine, and is non-refundable.

b. Incomplete applications on which no action has been taken by the applicant shall be void after sixty (60) days.

c. A license must be issued prior to the commencement of operation of a Child Care Facility, or the Applicant may be subject to sanctions.

2. At least sixty (60) days prior to the expiration of a license to operate a Child Care Facility, the Child Care Facility must submit an application and the required fee for renewal to the Department on a form supplied by the Department, accompanied by all additional information as may be required. It is the responsibility of the Child Care Facility to make timely application for renewal.

3. Upon receipt and review of application and determination of compliance with the requirements of the Maine Revised Statutes Annotated and any rules adopted pursuant thereof, the Department shall renew such license for a period of two (2) years, unless it finds that there are specific and sufficient grounds either for denial of the application for renewal or for renewal of the license on a temporary or conditional basis.

4. If timely application for renewal is made, the existing license shall continue until a final decision on the renewal is made, in accordance with 5 M.R.S §10002.

5. The applicant must complete Department-approved training as required by Section 8 of this rule before a license may be issued.

6. The Child Care Facility must comply with the Life Safety Code of the State Fire Marshal's Office, Department of Public Safety.

a. The Department must receive a written statement, furnished bi-annually by the State Fire Marshal's Office, indicating that the Child Care Facility has complied with the requirements of the Life Safety Code of the National Fire Protection Association.

b. No license to operate a Child Care Facility at any location shall be issued until such Child Care Facility passes a satisfactory inspection for fire safety and fire protection, including working fire detection apparatus as required.

c. As an ongoing condition of licensure, the Maine Department of Public Safety, Office of the State Fire Marshal, must inspect and approve the Child Care Facility premises at least every two (2) years.

d. The Child Care Facility must obtain approval from the Maine Department of Public Safety, Office of the State Fire Marshal or designee, which specifically notes where Child care may be provided (basements, specific rooms within property, and second or higher floors, including any restrictions on the ages of Children).

e. An additional fire safety inspection must be done when a heating system is changed, when major structural changes are made on the premises, and prior to use of new rooms on the premises. The Child Care Facility is responsible for notifying the Department of any changes that require inspection 10 days prior to installation.

f. Child Care Facilities must establish and maintain compliance with all corrections, restrictions, or conditions specified by the Maine Department of Public Safety, Office of the State Fire Marshal or designee in the Plan of Correction resulting from identified deficiencies in the course of the fire safety inspection, within the time frames identified.

7. The Child Care Facility must maintain, and provide to the Department on request, documentation that indicates that the Child Care Facility complies with local codes and ordinances, including zoning, or a statement from the locality that no approval is required.

8. Requests for an increase in the number of Children the Child Care Facility is licensed to serve must be made in writing to the Department with applicable fee. No increases in the number of Children a program is licensed to serve shall be made without written prior approval from the Department, the State Fire Marshal's Office, and local code enforcement, where applicable.

9. The Child Care Facility must secure, in writing, the approval of the landlord for any rented or leased space for use as a Child care.

D.Comprehensive Background check. Child Care Staff Members over the age of 18 must comply with all provisions pursuant 10-148 C.M.R Ch. 34 Child Care Provider Background Check Licensing Rule.

1. When disqualifying information is found in any of the registries, repositories, and databases required for the background check for an Applicant or if the Applicant is otherwise ineligible because of refusal to consent to a background check or knowingly makes materially false statements in connection with such a background check, no License shall be issued to that Applicant.

2. No Child Care Facility shall employ a Child Care Staff Member, over the age of 18 years old who has not furnished a Provider Letter of Eligibility indicating that the Child Care Staff Member is eligible, nor allow any individual known by the Child Care Facility to be ineligible under this Rule to have access to any Child in the Child Care Facility's care.

E.Type and term of a license. The type and term of a Child Care Facility license issued by the Department must comply with the provisions of this rule.

1. A provisional license shall be issued by the Department to an applicant who meets all the following applicable criteria, in accordance with 22 MRS §7802(A):

a. Has not previously operated a Child Care Facility in Maine, or has relocated to a new property, or has closed a program and is reopening;

b. Complies with all applicable laws and rules for a provisional license; and

c. Demonstrates the ability to comply with all applicable laws and rules for a full license.

2. A written provisional license may be issued for a term of no less than three (3) months and no more than 12 months.

3. A full license shall be issued by the Department to an applicant who complies with the requirements set out in this rule, in accordance with 22 MRS §7802(1)(B).

4. A full license shall be issued for a term of two (2) years, in accordance with 22 MRS §7802(2)(B)(5).

5. A written conditional license may be issued when the Department determines that the Child Care Facility has failed to comply with applicable rules and laws. The conditional license must specify the corrections that must be made and the deadline for making each correction, in accordance with 22 MRS §7802(1)(C).

6. A conditional license shall be issued for a specific term not to exceed twelve (12) months, or the remaining portion of the term of the previous full license, whichever the Department determines appropriate based on the violations set out in the Directed Plan of Action, in accordance with 22 MRS §7802(2)(C).

7. When a licensed Child Care Facility plans a move to a new location, the Child Care Facility must submit an application for a license for the new location. A temporary license may be issued by the Department for the new location, in compliance with 22 MRS §8301-A(6), when:

a. All applicable requirements set out in this rule have been met, except an inspection or other action by a state agency or a contractor of that agency that is required by this rule is delayed; and

b. No action or inaction by the applicant caused a significant delay by that state agency or a contractor of that agency.

8. A temporary license shall be issued for a specific term, not to exceed six months.

F.Administration.

1. A corporation, partnership, association, or trust must identify the names and addresses of its officers, partners, trustees, or directors and must provide, where applicable, the charter, partnership agreement, constitutions, articles of incorporation, by-laws, trust document, or other documents governing the legal obligations and authority of the entity.

2. Insurance

a. The Child Care Facility must carry a minimum liability insurance of $100,000 per person, $300,000 per occurrence; and a minimum of $5,000 property damage.

b. A certificate of liability insurance must be submitted prior to the issuance of a license.

3. The Child Care Facility must have a readily accessible copy of this rule on the premises and must make it available to any person upon request.

4. The Child Care Facility must allow a Child's parents/legal guardians unlimited access to visit the Child, to observe the program at any time that the Child is present and provide opportunities to participate in activities.

a. The Child Care Facility must exchange information with the Child's parents/legal guardians about the Child on a frequency appropriate for the age and development of the Child.

b. The Child Care Facility must advise a Child's parents/legal guardians prior to taking Children off the premises and must require the parents/legal guardian's written permission.

c. The Child Care Facility must be directly accessible to a Child's parents/legal guardians by telephone at all times when Children are present.

d. The Child Care Facility must advise a Child's parents/legal guardians prior to allowing the Child to participate in any high-risk activity; for example, swimming, horseback riding or using a trampoline.

5. The Child Care Facility must encourage parents/legal guardians to visit the Child Care Facility prior to admission.

6. A copy of the Child Care Facility handbook will be made available to all parents or legal guardians at the time of enrollment. The handbook must contain, at a minimum:

a. Ages of Children served;

b. Hours of operation and daily schedule;

c. Numbers of Children served;

d. Specific focus if applicable, such as educational focus, religious focus, Montessori, after-school, summer recreation, teaching site, etc.;

e. Opportunities for Parent/Legal Guardian involvement;

f. A description of the Child guidance methods used by Child Care Staff Members;

g. Services offered, such as: basic Child care, care for Children with special needs, part-time care, infant/toddler care, pre-school care, school-age care, etc.;

h. Fees (if any) including charges for late pick-up of Children;

i. Vacation policy;

j. Terms of any contract or placement agreements;

k. The rights of Children;

l. Emergency procedures and relocation information;

m. Incident reporting and mandatory reporting of Child Abuse or Neglect;

n. Expulsion and suspension practices;

o. Management of communicable illnesses;

p. Medication administration;

q. Annual calendar of closure dates (if applicable);

r. Resources available for developmental screenings; and

s. Reporting of Child death and serious injury.

7. The Child Care Facility must be in compliance with applicable provisions of the Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990). Compliance with ADA accessibility standards includes but is not limited to the following:

a. The Child Care Facility cannot require that the parent(s)/legal guardian(s) of Children with physical, emotional and/or mental disabilities furnish the Child Care Facility with information pertaining to the Child's disabilities but is encouraged to ask pertinent developmental questions about all Children prior to entrance, to ensure appropriate and successful programming.

b. A Child Care Facility must ensure that all Child Care Staff Members are adequately trained and/or have sufficient experience to meet the needs of all Children for whom they are responsible, as the need presents.

8. Except as provided by law, confidential information may not be released without a court order or a written release from the parent or legal guardian of the Child about whom the confidential information has been requested. Violation of these provisions is subject to financial penalties as set forth herein and pursuant to 22 M.R.S. §7702-A. Confidential information includes:

a. All Child records.

b. All personnel records.

c. Information that identifies, directly or indirectly, a referent, complainant, or reporter of suspected Child abuse and/or neglect, and/or licensing rule violations, in accordance with 22 M.R.S §7703(2)(G).

d. Information about Children in care (or formerly in care) must be disclosed only upon written authorization of a Child's legal guardian, except as otherwise specified by law, and must be shared with the Department and Child placing agencies licensed pursuant to 22 M.R.S Chapter 1671, upon request.

e. Personnel records must be provided to the Department upon request, in accordance with 22 M.R.S Chapter 1661.

9. The Child Care Facility must maintain a Child Care Facility Staff manual that addresses the following:

a. Policies and their implementation. This must include, at a minimum, policies for the following:

i. Mandated reporting,

ii. Child guidance,

iii. Child illness,

iv. Fire drill procedures,

v. Emergency and disaster procedures,

vi. Staff qualifications and training,

vii. Supervision of staff/interns

viii. Reporting licensing violations,

ix. Inclusionary practices for Children with disabilities,

x. Safe sleep policy,

xi. Serious injury and Child death reporting,

xii. Expulsion and suspension prevention,

xiii. Interpretation for English Language Learners,

xiv. Release of Children, and

xv. Transportation of Children (if applicable).

10. The facility must adopt written policy for handling all suspected instances of Child abuse or neglect in accordance with Maine statute. Written policy must include, but is not limited to, the following:

a. Internal notification procedure of suspected abuse or neglect;

b. Conditions that require internal notification of the owner, director, or designee;

c. The requirement that any suspicion of abuse and/or neglect must be immediately shared with the owner, director, or designee;

d. The requirement that suspected Child abuse and neglect must be immediately reported upon suspicion to Child Protective Intake hotline;

e. Identification of personnel responsible for contacting the Child Protective Intake hotline;

f. Protocol to notify all relevant parties that suspected Child abuse and neglect has been reported to Child Protective Intake;

g. Completion of incident reports, including: the details of the allegation or suspicion, the date Child Protective Intake was called, which relevant parties were notified the report was filed, and whether or not the parent/guardian was notified of the allegation; and

h. Parental notification, including the determination how and what information will be shared with a parent/legal guardian when Child Protective Intake has been contacted.

11. The Child Care Facility must develop a written policy to follow if an allegation of Child abuse or neglect is made against any Child Care Staff Member at the Child Care Facility. The written policy must include but is not limited to the following:

a. Prevention measures to protect from potential allegations;

b. Conditions of continued employment and access to Children during the course of an investigation by the Department;

c. Grounds for termination;

d. The requirement to report suspected Child abuse and neglect occurring at any location in accordance with statute; and

e. Parental notification.

12. The Child Care Facility is responsible for assuring that the policies are followed. This includes:

a. Responsibility for establishing and maintaining a sound financial structure;

b. Being qualified to administer the Child Care Facility or employing a qualified person to administer the program; and

c. The Child Care Facility must comply with all local, state and federal laws and rules pertaining to the operation of a Child Care Facility in Maine.

13. The Child Care Facility must be responsible for the daily operation in compliance with this rule.

a. If the director is absent from the Child Care Facility, a qualified Child Care Staff Member must be designated to be in charge and be given authority to administer the facility in compliance with this rule.

b. A facility licensed for 13-20 Children must employ at least one lead teacher who may be the same person as the director. Assistants may be employed to complete the ratios.

c. A facility licensed for more than 21 Children must employ one lead teacher per group of Children. Assistants may be employed to complete the ratios.

d. If the Director is absent in a facility licensed for 50 or more Children, a Child Care Staff Member who meets Director/lead teacher qualifications must be designated to be in charge and be given authority to administer the facility in compliance with this rule.

14. A sample daily activity schedule must be posted in each classroom. The schedule must include the following, as appropriate to the hours of operation:

a. Times for meals/snacks;

b. Time for sleep, rest, or quiet time; and

c. A period of time for indoor and outdoor activities appropriate to the developmental needs of the Children.

d. When necessary, modifications must be made in the schedule to meet Children's individual needs.

15. The Child Care Facility must enroll in Maine's Quality Rating and Improvement System.

16.Requirement for Prevention of Communicable Disease. For Nursery Schools only, every 2 years each licensee, administrator and other staff members of the Nursery School who provide care for Children must be declared free from communicable disease by a licensed physician, nurse practitioner or physician assistant, pursuant to 22 M.R.S. §8402. This is a condition for maintenance of a license for Nursery Schools, and Nursery Schools must adequately maintain records reflecting compliance with this requirement.

G.Change in license. An application to revise a license is required when:

1. A Child Care Facility seeks to increase the capacity, within the limits established by the State Fire Marshal and this rule;

2. There is a change in the Director of a Child Care Facility; or

3. The Child Care Facility requests approval for construction, additional space to be used, or a heating system requires replacement.

H.Waiver

1.Request for a Waiver. The Department may, upon written request of any Child Care Facility or applicant, waive or modify a provision of these Rules which is not mandated by Maine or federal statute. The Child Care Facility or applicant shall provide clear and convincing evidence, including at the request of the Department, expert opinion which satisfies the Department that the Child Care Facility or applicant's alternative method will comply with the intent of the rule for which a waiver or modification is sought. Application for a waiver or modification must include:

a. A statement of the provision for which waiver or modification is requested;

b. An explanation of the reasons why the provisions cannot be met and why a waiver or modification is being requested; and

c. A description of the alternative method proposed for meeting the intent of the provision sought to be waived or modified.

2.Approval or Denial of the Request for a Waiver. The Department will approve or deny a request for a waiver, in writing, within four weeks of receiving the request for a waiver. The written decision of the Department will explain the reasons why the Request for a Waiver were either approved or denied. If approved, the waiver will be limited to the term of the License; and extension will be granted only where the best interest of the Child(ren) is served.

10-148 C.M.R. ch. 32, § 2