Childcare owners and workers provide vital services under very stringent rules and regulations. Those who work in childcare must go through elaborate background checks in order to open their own facility or to work in a facility owned by someone else. Many daycare operators provide daycare out of their own homes and must go through an extreme series of inspections and modifications involving significant expenses. Licensure is important, and the ability to hold licensure is vital for a childcare business. Some childcare providers have difficulty getting started because of a history or a criminal charge that occurred decades earlier. Even after establishing your business, allegations of abuse, neglect, or failure to follow regulations can end the ability of childcare owners and workers to continue to work in the field. If you face allegations of child abuse or other allegations against your license as a daycare worker/director/owner, you need counsel experienced in license defense.
The Lento Law Firm Team can represent you or your childcare business if you face challenges. If you are singled out for disqualification as a childcare worker, director, or owner, you may be forced to fight to explain or clear your name. Whatever your circumstance, if you are being challenged in terms of childcare licensure, we can help. Call the Lento Law Firm today at 888-535-3686 or provide your details online, and we will contact you.
Types of Maine Childcare Facilities
- Family Childcare Programs. Family childcare programs care for 3-12 children at the provider's primary residence.
- Childcare Facility. Childcare facilities vary in size from small facilities (3-12 children) to childcare centers (13+ children).
- Nursery Schools. Nursery Schools provide 1-2 sessions per day of no more than 3.5 hours each for children 33 months to 8 years of age.
Childcare licensing in Maine is overseen by the Maine Department of Health and Human Services (“the Department.”)
Licensure Requirements
In Maine, a first childcare license will generally be a Provisional License. Family Childcare programs are licensed for 2 years. Childcare Facilities are licensed for 2 years, and Nursery Schools are licensed on a yearly basis.
License-Exempt Care
If an individual cares for 2 or fewer children, they are exempt from the requirement for a license. However, these individuals will need to pass a Background Check and Driving Record Check.
Qualifications of Owner/Applicant/Director for License
The Applicant and proposed Director (Section 2) must show the ability to operate a Childcare Facility and to manage the Facility with judgment and compassion with regard to the rights and best interests of children and compliance with regulations and laws. In deciding whether to grant a license to an Applicant/Director, the Department will consider the following:
- The reputation and relevant records of business and personal affairs of the Applicant/Director, including:
- Any legal arrests, indictments, or convictions.
- History of an investigation by Child Protective Services or another unit.
- The removal of children from the Applicant's or Director's care pursuant to a court order.
- Any protection from abuse orders or other orders involving domestic violence.
- Any prior licensing investigations or license suspension, revocation, denial, or condition.
- Conduct which demonstrates an understanding and compliance with this rule.
- Information that shows an ability or willingness to comply with regulations and laws.
- Any information that shows the ability to use care and promote safety.
- Relevant experience in the field of Childcare, Child development, or related areas.
- All applicants must authorize the Department to review the records and do relevant background checks, including court records, the Maine and national sex offender registries, child Protective Services, and Out of Home Investigations.
Personnel Qualifications
Under Maine law, all Childcare Staff Members:
- Must be at least 18 to work without supervision.
- Must be supervised if 16 or 17 years of age. 16- and 17-year-old childcare staff members must be directly supervised by another staff member, and that person must be over the age of 18.
- Must have a high school diploma or be attending high school or the equivalent. This may be a GED or enrollment in a GED program.
- Must show an ability to supervise children safely and responsibly, which is demonstrated by the following:
- The ability and willingness to follow childcare ratios, safety rules, and other regulations in a childcare facility.
- The ability to keep children safe and a willingness to give compassionate care.
- A lack of a serious criminal history or a history of dishonest conduct.
- If a childcare worker is working alone, they must not be so physically limited that they cannot safely care for the needs of children.
- All Staff Members caring for children must exercise good judgment, follow all relevant laws, and must not engage in any action harmful to the children.
- All Staff Members must be able to do their assigned jobs and must not use alcohol or drugs while on duty. If the Staff Member is taking a prescription drug, it is acceptable as long as it does not affect the ability of the Staff Member to care for children and is prescribed by a physician.
- Training and Education requirements are dependent on the size and type of Childcare Facility and will vary depending on the number of children the Facility serves.
Comprehensive Background Check
The following must have a background check:
- Every childcare provider.
- All current or future staff members.
- All household members over 18, if Family Childcare.
- Anyone else who provides care and has unsupervised access to children.
The following do not need a background check:
- Those who have infrequent or irregular contact with children.
- Those who have only supervised contact with children.
- A current worker in childcare who wishes to change employers but has passed a background check in the previous 5 years at the prior employer.
Substance of Background Check
After application to the Department for a Background Check, the Department will check:
- The NCIC Sex Offender Registry, to include fingerprinting typically by the FBI.
- In the state where the applicant now resides, the Department will check the State Child Abuse and Neglect Registry. This will typically involve fingerprinting by a state agency.
- In any state where the applicant has lived in the previous 5 years, the State Child Abuse database or SBI repository, with or without fingerprinting. The State Sex Offender registry should be checked as part of this check.
A background check should be repeated every 5 years.
Letters of Eligibility
Following a successful Background Check, the applicant will receive:
- Childcare Provider Letter of Eligibility
- Staff Member Letter of Eligibility.
No provider can employ a staff member who has not furnished a Letter.
Those Found Ineligible
The following will make an individual ineligible to own, direct, or work at a Childcare facility in Maine:
- Any registration on state or federal sex offender registry.
- Any finding of child abuse or neglect in background.
- A Felony Conviction for:
- Murder.
- Child abuse or neglect.
- A crime against a child.
- Spousal abuse.
- Rape or sexual assault.
- Kidnapping.
- Arson.
- Physical battery.
- Drug-related offenses in the previous 5 years.
- Misdemeanor in past 10 years involving:
- Reckless conduct.
- Domestic violence.
- Terrorizing.
- Stalking.
- Assault.
- Assault while hunting.
- Domestic violence criminal threatening.
- Domestic violence reckless conduct.
Consequences of Disqualifying Event
Childcare staff members over the age of 18 must submit to a Childcare Provider Background Check. If a disqualifying event is found in the databases or registries, no license will be issued. Any failure to provide relevant information or releases will result in a refusal to issue a license. No childcare facility may employ a staff member over the age of 18 who has not provided a Letter of Eligibility indicating that the Childcare Staff Member is eligible.
Appeal of Background Check
If a party has a disqualifying event in a Background Check, they may request a review of the results. The first type of review is for basic factual inaccuracy. This type of review would occur if the charges reported were erroneous or involved a mistake of identity.
If a party has been found to have a history of abuse or neglect finding, the person may seek review in two stages: first, a paper review for accuracy, then an administrative hearing. A history of abuse or neglect is a disqualifying event, and a person appealing to this type of finding must prove that the finding was erroneous.
If a party has a misdemeanor conviction, they may seek review based on proof that all legal remedies have been followed and no repeated conviction has occurred. An appeal for a misdemeanor conviction may admit the conviction but challenge whether the behavior is relevant to childcare licensure or employment.
The party must generally request a review within 30 days.
Transportation Checks and Rules
- Drivers for childcare facilities must be licensed to drive the type of vehicle they drive at the facility.
- Upon initial employment as a driver, each individual must have a Bureau of Motor Vehicle records check.
- Disqualifying offenses:
- Any motor vehicle violation resulting in death.
- Aggravated refusal to comply with law enforcement.
- Criminal homicide by motor vehicle.
- In the last 5 years:
- Criminal OUI.
- Driving on a suspended license.
- Driving to endanger.
- Refusal to stop as requested by law enforcement.
- Criminal Speeding.
Licensing Actions
The Department may take the following licensing actions:
- Conditional licensing certificate issued.
- Amend or modify a license.
- Void a conditional license.
- Refuse to issue or renew a license.
- Refuse to issue a full certificate.
- Impose a fine.
The Department may take any of the above actions for failure to follow rules or regulations.
Appeal Rights to Licensure Actions
Any party subject to the following actions has a right of appeal and hearing:
- Issuance of a Conditional License.
- Amendment or modification of a License.
- Voiding of a Conditional License.
- Refusal to Issue a License.
- Refusal to Renew a License.
- Imposition of a Fine.
If any of the above actions happen to an Owner/Director in Maine, they will need to file a Notice of Appeal and will need to ask for a Hearing. It is at this point that an Owner/Director will need to secure legal counsel to defend their licensure. It is important that any party facing a potential loss or limitation on a childcare license secure legal counsel as early as possible after notice of licensure difficulties. Don't wait until the last minute if you find yourself facing the loss of a license for a childcare business.
Administrative Suspension of a License
If the health or safety of children is in jeopardy, the Department can issue an order for immediate closure. This action will suspend a license for 10 days, during which time the department or authorities will investigate. The Department will suspend the license thereafter if appropriate. Obviously, anyone facing an Administrative Suspension of a Childcare License should secure legal counsel immediately, as the nature of the charges will involve abuse, neglect, or other safety issues for children.
Operating Without a License
The Department may fine a facility or individual at least $500 for operating without a license. The Department may fine no more than $10,000/day for operating without a license. The Department will initially license an Owner/Director, but it is up to the Owner/Director to ensure that all regulations are followed and all staff have Background Checks.
Reporting Child Abuse or Neglect
- Childcare workers have a duty to immediately report suspected child abuse or neglect.
- The Director of a facility must inform all workers of their duty to report and status as a Mandated Reporter of abuse or neglect.
- All childcare workers must be given written directions on how to report abuse and neglect.
- A childcare worker cannot be disciplined or discharged for reporting abuse and neglect.
- Child Abuse Hotline numbers must be posted in all childcare facilities.
Inspections
The Department conducts unannounced site inspections at its discretion. Routine inspections occur at the following times:
- Upon application.
- Annually, after the date of initial licensure.
- When the Facility has requested an increase in capacity, a change in premises or services, or other change in administrator, program description, physical plant, or services.
- To investigate a complaint or an allegation of suspected abuse and/or neglect.
- For routine monitoring of care.
Right of Entry
The Department has the right to enter any licensed Childcare Facility at any reasonable time. This includes entry to a facility operating without a license or with a search warrant from the District Court. The Department has the right to enter upon and into the premises of an unlicensed Childcare Facility with a warrant at a reasonable time and has the right to view and copy records to determine compliance with regulations. The Childcare Facility must allow access to all records and any part of the facility occupied by children. The Department may speak with children, parents, or Childcare Staff Members. The Department must write up all failures to follow regulations and fully explain each failure in an inspection report. The Department should give the Childcare Facility an explanation during the inspection and give the Facility the opportunity to correct the problem, but the issue should still be noted in the inspection report.
If you are potentially facing an impending inspection or allegations of neglect or abuse, it is important to have experienced legal representation, like the Lento Law Firm, in advance. The Lento Firm will be able to advise you as to whether you must allow entry or inspection of particular premises or records. You should never be in a position to decide on what to allow under a search warrant without the ability to speak with counsel. Once again, if you are aware of allegations against your license or facility, call the Lento Law Firm as early in the process as possible.
Plan of Action
For issues that cannot be corrected at the time of the inspection, the facility and the Department will put together a Plan of Action within 5 days of the inspection. After the inspection, the Childcare Facility must demonstrate compliance with the written Plan of Action.
Directed Plan of Action.
If the Department believes that a childcare entity is not complying with rules or regulations, it may issue a Directed Plan of Action for non-compliance. This Directed Plan must be specific when listing the ways in which a childcare facility is failing to follow the rules or regulations. The Directed Plan must then provide an explanation of what actions must be taken by the childcare facility to show compliance and a willingness to follow the rules and regulations. If a childcare facility does not comply with this Directed Plan of Action, the Department can take several enforcement actions, including revoking the childcare facility's license.
Investigations
If there is a complaint against a childcare facility or an allegation that someone at the facility abused or neglected a child, the Department will investigate. A childcare facility has no choice but to cooperate in all aspects of the investigation. This cooperation with an investigation must include allowing staff to be interviewed. Children can be interviewed, provided that the parents give permission. The childcare facility must allow access to all records or incident reports and must also allow access to all parts of the childcare facility. During or after an investigation, it is vital not to retaliate against anyone who filed a complaint or reported abuse or neglect, as retaliation of this kind is illegal. Any worker who has reported abuse or neglect in a childcare facility and faced the loss of their job or other retaliation, as a result, should call the Lento Law Firm to discuss this issue with an attorney as quickly as possible.
Child Guidance or Discipline in Childcare Facility
Allegations of abuse or neglect may originate with attempts by childcare workers to discipline children. The Maine regulations on childcare emphasize that discipline of children:
- Should be positive in nature.
- Should be consistently and reasonably applied.
- Should be constructive and involve the following techniques:
- Conflict Resolution.
- Encouragement to verbalize.
- Redirection.
- Providing choices.
- Praise or positive reinforcement.
- Recognition of the child's strengths.
- Supervised breaks from group.
- Setting positive expectations.
- Teaching self-regulation.
- Modeling proper behavior.
- Encouragement of differences.
Detrimental Practices
The following are Detrimental Practices that no Maine child should be exposed to:
- Corporal punishment, including mechanical constraints, taping of mouth, or spraying with water.
- Aggressive contact, including embarrassing or humiliating of a child.
- Withholding food or drink.
- Profane language.
- Silence or inactivity that exceeds the number of minutes representing a child's age in years.
- Unusual confinement.
- Lack of supervision.
- Rough handling.
Right to Appeal Department Action
If the Department has taken negative action against you based on discipline of children or other aspects of childcare in your facility, you have the right to appeal. The Appeal must be:
- In writing and stating grounds of appeal.
- Served within 30 days of notice of the action appealed from.
- Mailed or served on the Department's Hearing Examiner.
- Appeal will stop or stay the action appealed, except under Section 21(D), Chapter 1-2.
Hearing
If the grounds for appeal are present, the appealing party may request a Hearing (chapter 20). The Hearing will be conducted under Maine Administrative Hearing rules and regulations. If you are facing the need to defend your license, your reputation, or your licensure at a Hearing, you need legal counsel immediately. Your legal counsel can examine witnesses, present documentary evidence, and formulate your defense to a licensure action in Maine. Following an unsuccessful hearing, a party may appeal to the Maine Superior Court. If an appeal proceeds to Court, the Owner/Director of the childcare facility must secure experienced legal counsel without delay.
The Lento Law Firm Represents Daycare Workers, Owners, and Directors Throughout Maine.
The Lento Law Firm represents daycare workers, directors, and owners from Portland, Bangor, Augusta, and other areas of Maine. We can help whether you are denied a license or are being removed for a disqualification issue or for any other issue related to daycare licensure. The Lento Law Firm's Professional License Defense Team will lead the defense of your license, negotiating with the State and otherwise seeking the best possible resolution to your case. Call us today at 888-535-3686 or submit your details online, and we will contact you.
