10-148 C.M.R. ch. 32, § 21 - Enforcement, Subsequent Reapplication, and Appeal RIGHTS
A.
Enforcement. The Department
may direct any Child Care Facility to correct any violations in a manner, and
within a time frame, that the Department determines is appropriate to ensure
compliance with this rule or to protect the health and safety of Children. The
Department may take one or more of the measures set forth herein, at any
appropriate level, to address violations of this rule or applicable statutes.
B.
Civil Penalties.
The Department may assess civil penalties in accordance with the schedule of
penalties outlined in this rule, if the Child Care Facility fails to comply
with applicable laws and/or this rule.
1. A
civil penalty may be assessed for a violation as set forth in this rule.
2. A civil penalty is issued via a
Notice of Civil Penalty. The Notice will describe each violation, the rule or
statute that has been violated and any scheduled amount of civil penalty
corresponding to that violation.
3.
The Department has established the following schedule of civil penalties for
Child Care Facility's failing to correct violations by the Department's
timeline pursuant to
22 MRS
§7702-A:
a.
Violations regarding
records/disclosure: $500.00 per violation.
b.
Violations regarding Child to staff
ratios - not more than $500/incident or $500/number of Children above
the limit set by rule, or both.
5. Child Care Facilities are required to pay
the Department the amount of the civil penalty within 30 days of receipt of the
Notice of Civil Penalty. If the Child Care Facility has not paid the total
fines due before license renewal, then the license renewal application will be
denied.
6. Imposing a civil penalty
is not deemed, in any way, to extend any deadline for compliance.
C.
Conditional
license. The Department may issue a conditional License, when the Child
Care Facility fails to comply with applicable law and rules and, in the
judgment of the Department, the best interest of the public would be so served
by issuing a conditional license or approval, in accordance with
22 MRS
§7802(1)(C).
1. The notice of conditional License will
include a Directed Plan of Action, which must specify when and what corrections
must be made during the term of the conditional license or approval.
2. Failure to complete or comply with a
Directed Plan of Action may result in further enforcement, up to and including
the revocation of a license.
D.
Suspension of a license. The
Department may suspend or seek to suspend a License as follows:
1.
Administrative Suspension/Order of
Closure: Pursuant to
22
M.R.S. §8301-A(5),
whenever conditions exist that immediately jeopardize the health and safety of
Children, the Commissioner may issue an order of closure, which suspends the
Child Care Facility license for up to 10 days, pending further investigation or
prior to obtaining an order of emergency suspension from the court. The
Department shall require that an order of closure be posted at the Child Care
Facility and made public as it determines to be most appropriate for parents
and other potential customers.
2.
Emergency Suspension: Pursuant to
22 M.R.S.
§7802(3)(C), whenever,
upon investigation, conditions are found which, in the opinion of the
Department, immediately endanger the health and safety of persons attending a
Child Care Facility, the Department may request from the District Court an
emergency suspension in accordance with
4 MRS
§184(6).
E.
Referral to and Authority
of the Office of the Attorney General. Pursuant to
22
M.R.S. §7702-B(4), the
Office of the Attorney General has authority to file a complaint with the
District Court seeking civil penalties or injunctive relief or both when the
Department alleges that a person, firm, partnership, association, corporation
or other entity is, as relevant here, operating a Child Care Facility as
defined in
22
M.R.S. §8301-A(B)
without first obtaining a license.
1. Civil
penalties: Pursuant to
22
M.R.S. §7702-B(3), the
civil penalty is not less than $500 nor more than $10,000 per day. Each day of
violation constitutes a separate offense.
2. Injunctive relief: Pursuant to
22
M.R.S. §7702-B(3),
notwithstanding any other remedies provided by law, the Office of the Attorney
General may seek an injunction to require compliance with
22
M.R.S. §7702-B(1).
F.
Refusal to
issue or renew a license. The Department may refuse to issue or renew a
license when a Child Care Facility fails to comply with applicable laws and
rules. The Notice of Refusal to issue or renew a license shall be in writing,
will indicate the reasons for refusal, and will be mailed or delivered to the
Applicant or Child Care Facility.
G.
Revocation of a License. The
Department may revoke a full or temporary license for violation of applicable
laws and rules for committing, permitting, aiding or abetting any illegal
practices in the operation of the Child Care Facility or for conduct, or
practices detrimental to the welfare of Children attending the Child Care
Facility in accordance with
22 MRS
§7802(3)(D).
H.
Voiding of a Conditional
License. The Department may void a conditional License when the Child
Care Facility fails to comply with the conditions of the License.
I.
Consent Agreement. The
Department may issue a Consent Agreement in lieu of another formal sanction. If
the Consent Agreement is not followed the Department may take further licensing
action.
J.
Limitation on
reapplication after denial or revocation of a license. The following
time limit applies to a reapplication after denial or revocation of a license.
1. When a license has been denied or revoked
on one occasion, the Applicant or Child Care Facility may not reapply for a
License for a period of one year from the effective date of the denial or
revocation decision if not appealed or, if appealed, from the effective date of
the commissioner's final decision or the reviewing court's order, whichever is
later.
2. If a License has been
denied or revoked on two occasions, the applicant or Child Care Facility may
not reapply for a License for a period of two years from the effective date of
the second denial or revocation decision if the decision is not appealed or, if
appealed, from the effective date of the commissioner's final decision or the
reviewing court's order, whichever is later.
3. If a License has been denied or revoked on
three occasions, the Applicant or Child Care Facility may not receive another
License for the care of Children.
K.
Subsequent application for a full
License. A subsequent application for a full License may be considered
by the Department after any of the following actions, when the deficiencies
identified by the Department at the time the action was taken have been
corrected:
1. Issuance or voiding of a
conditional License;
2. Amendment
or modification of a License;
3.
Refusal to issue or renew a full License;
4. Revocation or suspension of a full
License; or
5. Refusal to issue a
provisional License.
L.
Full licensure after deficiencies corrected. An application for a
full License may be considered by the Department only when the deficiencies
identified by the Department have been corrected.
M.
Right to appeal.
1. The Child Care Facility may appeal a
Department action and request an administrative hearing as follows:
a. The appeal must be in writing and must
state the specific issue(s) being appealed.
b. The appeal must be made within 30 days of
receipt of notice of an action subject to the right of appeal and must be
mailed or delivered to the Department's Hearings Examiner.
c. The following actions are subject to the
right of appeal:
i. Denial of a requested
Waiver;
ii. Issuance of a
conditional License, including amendment or modification of a License, a
reduction in Licensed capacity or cessation of new admissions, when required by
the Department in conjunction with a conditional license;
iii. Emergency Suspension of a License;
iv. Voiding of a conditional
License;
v. Refusal to issue or
renew a full License;
vi. Civil
penalties; or
d. Actions
subject to the right to appeal shall be stayed until the Department makes a
final agency decision, unless the License is suspended under Section 21(D)
(1-2).
2. The hearing
will be conducted pursuant to the Department's Administrative Hearings
Regulations at 10-144 CMR Ch. 1.
3.
A Child Care Facility may appeal an adverse final agency action to Superior
Court.
Notes
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