Childcare License Defense in Massachusetts

Childcare owners and workers provide vital services under stressful and sometimes difficult conditions. Those who work in childcare must go through background checks in order to provide care and operate 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 make expensive modifications to their homes and pass difficult inspections at significant expense. 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. 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. Even after establishing your business, allegations of abuse, neglect, or failure to follow regulations can end your ability to continue to work in the field. If you face allegations of child abuse or other allegations against your license as a childcare worker, director, or owner, you need counsel experienced in license defense. The Lento Law Firm Team can represent you or your childcare business if you face these allegations or other challenges. Whatever your circumstance, if you need help defending your childcare license, call the Lento Law Firm today at 888-535-3686 or provide your details online, and we will contact you.

Childcare Licensing in Massachusetts

In MA, childcare licensing is done by the Department of Early Education and Care (EEC). The process of licensure is automated in a cloud-based system called the Licensing Education Analytic Database, or LEAD. Both the EEC licensors and the applicants or providers use LEAD. In LEAD, providers can view the results of inspections and address any non-compliance issues. Providers can also file Incident Reports and apply for a license renewal through LEAD.

Types of Childcare

In Massachusetts, childcare programs are most often:

1. Family Childcare.
2. Small Group Childcare or School Age Care.
3. Large Group Childcare or School Age Care.

Family Childcare

A provider may care for 10 children under the age of 14 in their own home through Family Childcare. There are three types or categories of Family Childcare in MA:

• Up to 6 children – If children are within age limits, one provider can care for up to 6 children.
• Up to 8 children – If children are within age limits, one provider may care for up to 8 children if at least two are school-age.
• Up to 10 children – With an approved assistant, a provider may care for up to 10 children if they are within age limits.

The Approved Assistant may be a Regular Assistant or may be a Certified Family Childcare Assistant. While a Regular Assistant has basic training, a Certified Assistant must meet the qualifications of a licensed provider and may substitute for the provider for up to 25 hours in 12 months.

Small Group and School-Age Childcare License

In a Small Group Childcare, the provider may care for up to 10 children in a community-based setting. The Licensee of such a facility is either an individual or a corporation. If not incorporated, the individual owning the facility is the Licensee. If a program is incorporated, the person signing the application must be a corporate officer or an individual with a letter from the corporation giving them agency to sign.

Large Group and School-Age Childcare Director

Large Group Childcare can provide care for larger groups of children. In this event, licensing issues are handled by the Center Director, who must meet qualifications for both group childcare and school-age childcare. This Director must have skills for the care of children from birth to 14 years of age. The Director can be a teacher in a smaller facility as follows:

• Unlimited teaching for groups under 27 children.
• Fifty percent teaching time for groups of 27-52 children.
• No teaching time for groups over 52 children.

The Director of the facility must be present at least 50% of the time the School Age program is operational.

Exceptions from Licensing

The following types of programs are exempt from Childcare licensing provisions:

1. Children of Common Parentage. If all children are related to the caregiver by blood, marriage, or adoption, no license is required. Relationships include parents and grandparents, aunts and uncles, great-aunts and uncles, and siblings.
2. No Regular Care. Programs not operating regularly are exempt from licensing.
3. Occasional Care. If no child attends more than 4 hours a day or 6 days per month, it is exempt from licensure.
4. Not Separate from Parents. If childcare is not separate from parents or guardians, it is exempt from licensure. Parents and guardians must remain at all times and give care immediately.
5. Drop-In or Open-Door Care. A program is exempt from licensure if children may drop in or leave during any and all hours a program is open.
6. Instructional Care. If a program involves instructional classes that rotate and end, it is exempt.
7. Private Organized Educational System. If organizers plan a school or nursery school as an alternative to public school, it is exempt.
8. Religious Services. Care provided for short periods during religious services is exempt.
9. Informal Coops. Care provided under an agreement with relatives or neighbors is exempt, provided that no personnel are paid and all parents in Coop share responsibility for services.
10. Summer Camp. A program that operates only in the summer is exempt. This includes youth groups and programs that only operate during school breaks.

Background Checks

Prior to licensure, nearly all staff must pass a Background Check. This is a data check from the Mass. Dept. of Criminal Justice Information Services. It includes a check of state and federal fingerprint databases, the Mass. Sex Offender Registry (SORB), the Mass. Dept. of Children and Families database and other child welfare and sex offender databases.

All candidates for employment must complete a BRC. Volunteers must complete a BRC if they are near children in an unsupervised way. Contractors must complete a BRC if they are around children unsupervised.

Disqualifying Background Information

Family Daycare

The following are disqualifying background information or events for Family Daycare:

1. Criminal charges or a conviction that the agency decides will negatively affect the ability of the applicant to care for children.
2. Engaging in conduct, criminal or not, that the agency decides will negatively impact the ability of an applicant to care for children.
3. Conduct leading to the applicant's child being adjudicated in need of care or a protective order.
4. Allegations of abuse or neglect of a child in a 51B Report.
5. Use of alcohol or drugs in a way the agency determines will impair the applicant's ability to care for children.

Group or Daycare Non-Residential

The following are disqualifying background information for Group or Non-residential Daycare:

1. Applicant's child previously adjudicated in need of care or a protective order.
2. Use of alcohol or drugs in a way the agency determines will impair the applicant's ability to care for children.
3. Criminal charges or a conviction included in a CORI report.
4. Any conduct the agency finds will impair the ability to care for children.

While this regulation on disqualifying information is troublesome for a number of reasons, especially in terms of considering charges or conduct for which there was no conviction, the offenses considered disqualifying are put out in a paper by the EEC. These include murder, rape, kidnapping, trafficking, and battery.

Automatic, Presumptive and Discretionary Disqualifications

The EEC has lists of criminal conviction types that are Mandatory, Presumptive, and Discretionary for the application of a license or continued licensing. Anyone facing an initial licensure will need to explain, at the very least, a violation on any of these lists. Obviously, a violation that places an individual on a sex offender registry will almost certainly prevent licensure. But other types of violations, especially those far removed or those that occurred prior to sobriety, may be quite different. Call the Lento Law Firm—we can advise you, and more importantly, we can help you. Perhaps most troubling are accusations against someone with a current license and a successful program. These types of allegations may affect your license, even if they are untrue and baseless. Again, call the Lento Law Firm and let us help you to defend against any kind of current charge.

Mandatory Violations include:

• Aggravated assault & battery
• A & B with a firearm
• Arson
• Assault to rape child
• Carjacking
• Child endangerment, felony
• Child pornography
• Enticement of a child
• Home invasion
• Kidnapping
• Murder
• Rape
• Robbery
• Stalking
• Sexual Trafficking

Presumptive Violations include:

• Assault & Battery, levels 3-6
• Unlicensed adoption
• Animal Fighting
• Burglary, unarmed, 5-6
• Child abuse, misdemeanor
• Child endangerment, misdemeanor
• Cocaine trafficking
• Extortion
• Trafficking firearms
• Lewdness
• Manslaughter
• Motor vehicle homicide
• Reckless endangerment of children, misdemeanor
• Sex, pay for

Discretionary violations include:

• Assault & battery, misdemeanor
• Violating an abuse prevention order
• Animal cruelty
• Assault on a family member, misdemeanor
• Check forgery.
• Civil rights violations
• Criminal harassment, misdemeanor
• Disorderly conduct
• Drug possession, misdemeanor
• Gaming violations
• Larceny
• Receiving stolen property
• Solicitation of a prostitute

Again, if you are facing charges or have a discretionary conviction, the Lento Law Firm can help. Call us and prepare to fight to pass your Background Check or defend against post-license allegations or charges.

Inspections

The EEC can visit any program at any time for annual visits or to investigate complaints. The EEC has very broad authority under 102 CMR 1.06(1)(a) to investigate allegations of abuse or neglect or other complaints. Under federal law (45 CFR 98.42), the EEC may inspect any licensed provider or any program receiving federal funding. This means that exempt programs that receive funding may still be inspected.

For Licensed Programs, the EEC must do at least one pre-license inspection and 1 annual unannounced inspection and can do more. For exempt programs receiving funding, the EEC can do an annual visit, but it must be announced and scheduled. This applies to care provided to children from relatives – the EEC can inspect, but not in a “surprise” way.

The EEC will often arrive with the items they will inspect predetermined. The EEC can make the following findings on any items or issues:

1. Compliant. The program met regulations with regard to the item.
2. Non-compliant. The program failed to meet regulations with regard to the item.
3. Non-assessed. The EEC planned to inspect the item but could not due to other issues.
4. Not Applicable. The EEC planned to inspect the item, but it does not apply to this program.

Exit Interview and Statement of Non-Compliance

The EEC will conduct an Exit Interview with the owner, director, or provider after finishing the inspection. At this point, they will inform this individual of any deficiencies and any citations they plan to issue. The EEC should provide help and guidance in order to fully understand how the program is out of compliance and how the issue might be corrected.

The EEC will issue a Statement of Non-Compliance along with any citations and an explanation of what the licensor observed and what regulation the program violated. This is input into the LEAD system. The owner, director, or provider responds to this statement with a plan of corrective action. This plan must state specifically how the program will correct the issue and must be submitted within 14 days. The EEC licensor can approve or reject the corrective action plan. When the EEC and the program agree on a plan, the investigation is closed.

Inaccuracies in the LEAD Database

If any information in the Investigation or the corrective action paperwork is inaccurate, especially if it is damaging to the reputation of the program, it should be corrected. The program should inform the EEC, who will have 7 days to remove or correct information. The EEC may remove them immediately or may wait up to 30 days for minor issues. In the event of an appeal, the EEC may be forced to go back and remove information. Because many items are available to the public on databases, including the results of closed inspections, this can be a serious issue for a program's reputation. If you are concerned about how inaccuracies might affect your program, call the Lento Law Firm immediately.

Sanctions

Prior to sanctioning a program, the EEC should consider:

1. Non-compliance at the facility.
2. Risk to health and safety of any non-compliance.
3. Scope and nature of non-compliance.
4. Failure of a licensee to correct the issues.
5. Previous non-compliance.
6. Previous enforcement action.

Enforcement Action

The EEC may suspend a license, revoke or refuse to renew a license, may issue sanctions, or may fine a program. The following are grounds for such actions:

1. The applicant or licensee failed to follow regulations or failed to follow the corrective action plan.
2. The applicant or licensee failed to pay a fine.
3. The applicant or licensee lied or made a false or misleading statement in filings.
4. The applicant or licensee refused to provide records or submit information or refused to allow inspection or investigation of facility or records.
5. An applicant failed to get a license prior to opening and operating a program.

Other Sanctions by EEC

Apart from license actions, the EEC may make the following sanctions against a program:

1. Stop new children from enrolling.
2. Reduce the number of children allowed to enroll.
3. Order the hiring of a consultant for technical guidance.
4. Order the program to hire a monitor on-site who reports to EEC.
5. Order the hiring of additional childcare staff, either permanently or temporarily.
6. Restrict a staff person's access to children.
7. Fine the program.

Administrative Reconsideration

An applicant or licensee may file a written request for administrative reconsideration within 7 days of receipt of a notice of sanction. The General Counsel of EEC will grant or deny the request within 15 business days.

Right to an Appeal

While the EEC will tell you that there is an “informal” appeals process for non-compliance issues, there is not much beyond what is already available on LEAD. The Formal Appeals Process is available if the EEC takes the following actions:

1. Issues Sanctions.
2. Suspends license through Emergency Order.
3. Revokes a license.
4. Refuses to renew a license.
5. Assesses fine.

File the Notice of Appeal with the Division of Administrative Law Appeals (DALA) within 21 days.

Right to Hearing

A Right to a Hearing is available in the following situations:

1. Denial of a license issuance.
2. Refusal to renew a license.
3. Revocation of a license.
4. Probation or a probationary license.
5. Suspension of a license.
6. Fine.

Once a Notice of Appeal has been filed appealing any of the above actions, the party will have a right to a hearing. The Notice of Appeal should be filed with the Division of Administrative Appeals within 21 days of notice of action. If suspension is an emergency, the program must file an appeal within 5 business days under 102 CMR 1.07(5)(a). The DALA Administrative Magistrate assigned to the case will oversee the Hearing. The Magistrate will issue a recommended decision, and the EEC Commissioner will issue a Final Agency Decision within 180 days. If there is no decision, the Magistrate's decision becomes final. There is a right to appeal this decision to the court.

The Assistance of a Lawyer

An attorney can advise you on how to handle all types of issues as they arise. If you are scheduled for an interview or deposition, your attorney can prepare you. Your attorney can advise you on all sorts of issues and assist you in gaining a finding of compliance. They can negotiate with the state and help avoid the need for further processes and hearings. If a hearing is necessary, your attorney can prepare you for the hearing. Your attorney will prepare written statements and help you choose evidence and documents. They can put together a witness list and can interview witnesses. At the hearing, your attorney will be able to make arguments and prevent any serious mistakes. Your attorney will be able to question the other side and cross-examine witnesses harmful to your case. More than anything else, your attorney will help as an equalizer, giving you power so that you are not alone against a large state apparatus. It's okay if you are scared or if you have doubts or regrets. The Lento Law Firm can step in and assist you in keeping your license and business.

Investigation Results Posted

The results of an inspection or investigation are shared with parents, consumers, and the public through Child Care Search. All corrective action plans are posted and may stay up for up to 5 years. The EEC posts the results of investigations or inspections within 90 days of closure. False or erroneous information in LEAD must be corrected because it can harm the reputation and viability of a program. For this reason, it is never a good idea to let any type of negative information about your business and reputation sit in LEAD. Call the Lento Law Firm—we can help prevent negative information from affecting your reputation and business. No person who needs a license for their business can afford to let negative information sit online and be available to the public unchecked.

The Lento Law Firm Represents Childcare Workers and Owners in MA.

The Lento Law Firm Team represents childcare workers, directors, and owners from Boston, Salem, Cambridge, New Bedford, Worcester, Springfield, or any other city or area in Massachusetts. We can help whether you are denied a license, have been accused of abuse or neglect in your childcare business, or have any other issue related to childcare licensure. Don't face the defense of your business and your livelihood alone. 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.