Code of Massachusetts Regulations
102 CMR - OFFICE OF CHILD CARE SERVICES
Title 102 CMR 1.00 - Enforcement Standards And Definitions For Licensure Or Approval
Section 1.07 - Enforcement and Compliance with Regulations
Universal Citation: 102 MA Code of Regs 102.1
Current through Register 1531, September 27, 2024
(1) Deficiency Correction Orders.
(a) Whenever the Office
finds upon inspection or through information in its possession that a program
or facility is not in compliance with the regulations, the Office may order the
licensee to correct any non-compliances as specified in a deficiency correction
order.
(b) The deficiency
correction order shall include a statement of observations and indicate which
regulation(s) the licensee has violated. The order may prescribe the method(s)
of compliance with the regulations; and, the order shall prescribe the time
period(s) for correction, which shall be reasonable, depending on the nature of
the non-compliances cited and the time required for corrections.
(2) Factors which shall be considered by the Office before imposing any sanction or fine or any action authorized under 102 CMR 1.07(4) include but are not limited to:
(a) any non-compliance at the facility or
program;
(b) the risk the
non-compliances present to the health, safety, and welfare of
children;
(c) the nature, scope,
severity, degree, number, and frequency of the non-compliances;
(d) the licensee's failure to correct the
non-compliances;
(e) any previous
non-compliances; and
(f) any
previous enforcement action(s).
(3) Sanctions and Fines
(a) Whenever the Office
finds upon inspection or through information in its possession that a person
operating a program or facility is not in compliance with any OCCS regulations
governing such program, the Office may, in a notice of sanction, impose one or
more sanctions which may include but need not be limited to:
1. ceasing the enrollment of new
children;
2. reducing the number of
children a program or component of a program is licensed to serve;
3. hiring of a consultant(s) to provide
technical assistance and/or training;
4. hiring of additional staff on a temporary
or permanent basis; requiring the licensee to fund a monitor selected by and
accountable to the Office;
5.
restricting an administrator's and/or staff person's access to
children;
6. requiring that an
agency withdraw it's approval of an adoptive, foster or shelter home.
(b)
Fines. The Office may levy a civil fine if it finds
that an applicant or licensee has failed to comply with any plan for compliance
or deficiency correction order issued by the Office provided that the plan or
order included a statement notifying the licensee that failure to comply with
all or part of the order may result in a civil fine levied in accordance with
any OCCS regulations governing such programs.
1. Fines shall range from $50 to $250 for
family day care, group day care, or school age child care programs; $50 to
$1000 for any other program regulated by the OCCS.
2. Failure to comply with more than one order
issued by the Office may result in the assessment of more than one
fine.
(4) Probation, Suspension, Revocation, and Refusal to Issue or Renew Licenses and Approvals.
(a)
Grounds. The Office may make probationary, suspend,
refuse to renew, revoke, or refuse to issue a license or approval if it finds
any of the following:
1. the applicant or
licensee failed to comply with any applicable regulation, or any deficiency
correction order, notice of sanction, suspension, agreement or terms of
probation;
2. the applicant or
licensee failed to pay a fine after either failing to appeal the assessment of
a fine within the prescribed time or after a hearing where assessment of a fine
was upheld;
3. the applicant or
licensee submitted any misleading or false statement or report required under
102 CMR 1.00 through
8.00et
seq.;
4. the applicant or
licensee refused to submit any report or make available any records required
under
102 CMR 1.00 through
8.00et
seq.;
5. the applicant or
licensee refused to admit, at a reasonable time, any employee of the Office
authorized by the Commissioner to investigate or inspect, in accordance with
102 CMR 1.00; or
6. the applicant or licensee failed to obtain
a license prior to opening a program or facility or prior to changing the
location of a program or facility.
(b)
Effect.
1. Upon revocation, refusal to renew, or
suspension the licensee shall immediately return the license or approval to the
Office and cease providing services.
2. An applicant or licensee shall not qualify
for a license or approval from the Office for five years after a final agency
decision to revoke or refuse to issue or renew a license or approval held by
the applicant or licensee pursuant to M.G.L. c. 28A or other similar licensing
law. Thereafter, an applicant or licensee shall be eligible only if he/she can
demonstrate a significant change in circumstances.
3. The Office may, at its sole discretion,
entertain an application for approval or licensure prior to the expiration of
five years, if it determines that a significant change in circumstances has
occurred. Such exercise of its discretion shall not be appealable.
(5) Suspension in An Emergency.
(a) The Office may suspend any license or
approval without a prior hearing if failure of the licensee to comply with any
applicable regulation results in an emergency situation which endangers the
life, health, or safety of children or staff present in the program or
facility. The licensee shall be notified of any such suspension of a license or
approval by written notice, hand delivered, or mailed to the licensee via first
class mail, certified or registered, return receipt requested, or delivered by
courier requiring a signed receipt. If a Notice of Claim for a hearingis
delivered in hand or mailed to the Office via first class mail, certified or
registered, return receipt requested, within five business days of the
licensee's receipt of such notice, a hearing shall be held within ten business
days of the receipt of such Notice of claim. The suspension shall remain in
effect pending such a hearing.
(b)
The sole issue at the hearing shall be whether the Office has reasonable cause
to believe that the licensee's failure to comply with any applicable regulation
resulted in an emergency situation which endangers the life, health, or safety
of children or staff present in the program or facility. If a 51B report
indicates that any abuse or neglect occurred in a family day care program or
during participation in a family day care program related activity, it shall be
prima facie evidence that an emergency exists.
(c) The licensee shall notify the parents or
guardians of all children enrolled in the program or facility and all funding
agencies of any such suspension of a license or approval within two business
days of receipt of notice from the Office.
(d) Upon suspension, the licensee shall
immediately return the license or approval to the Office and cease providing
services.
(6) Follow-up to Enforcement Action.
(a) Upon the expiration of the time frame(s)
prescribed in a plan for compliance, deficiency correction order, or notice of
sanction, a duly authorized employee of the Office will determine compliance
with such plan, order, or notice, by visiting the facility or program,
reviewing documents, and/or verifying compliance through whatever other means
the Office deems suitable.
(b) If a
determination of non-compliance with such plan, order, or notice is made, the
Office may request an additional plan, issue an additional deficiency
correction order or notice of sanction; or, in addition to any of the actions
listed above, levy a civil fine pursuant to
102 CMR 1.00; or make
probationary, revoke, suspend, refuse to issue, or refuse to renew a license or
approval.
(c)102 CMR 1.00 in no way limits
the Office's authority to visit any facility or program subject to licensure or
approval by the Office to determine compliance with any regulation, nor does
102 CMR 1.00 limit the
Office's authority to make probationary, suspend, revoke, or refuse to issue a
license or approval.
(d) Following
revocation, refusal to renew or suspension, a duly authorized employee of the
Office will determine compliance by visiting the facility or program, reviewing
documents, and/or verifying compliace through whatever other means the Office
deems suitable.
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