(1) Pursuant to M.G.L. c. 94G, §§
4(a)(xii), (xiv), 21(a)(ii) and M.G.L. c. 941, the Commission may make, in an
exercise of its discretion, a suitability or cure determination based on a
factual basis.
(2) The Commission
may also delegate suitability determinations to the Executive Director, who may
appoint a Suitability Review Committee (Committee) to advise the Executive
Director.
(3) All suitability
determinations will be made in accordance with the procedures set forth in 935
CMR 501.800.
(4)
Suitability Review Process.
(a) Designated Enforcement staff (staff)
shall conduct background checks and gather information and evidence applicable
to a subject's suitability and make a recommendation as to suitability and, as
appropriate, a cure. Staff may make an adverse suitability recommendation on
finding information and evidence that would result in a Mandatory
Disqualification, Presumptive Negative Suitability Determination or that would
support a Negative Suitability Recommendation.
(b) Before making an adverse suitability
recommendation, staff shall consult with the Executive Director or the
Executive Director's delegee(s). The Executive Director may dispose of the
matter or direct the Committee to institute a review of suitability or take any
action consistent with M.G.L. c. 94G.
(c) If the Executive Director institutes a
suitability review, the staff shall send the written notice of an adverse
suitability recommendation that identifies the Person subject to suitability
review, the particular offenses or conduct relied on and whether that the
offenses or conduct results in a Mandatory Disqualification or Presumptive
Negative Suitability Determination, or supports a Negative Suitability
Recommendation, and reasons for that determination.
(d) The notice of an adverse suitability
recommendation shall provide an opportunity to cure the suitability issue by
removing the subject from its application. To the extent that an applicant can
propose a cure, for example, by removing a subject from an application, the
cure shall be done in a manner determined by the Commission.
(e) The notice of an adverse suitability
recommendation shall provide the subject with the opportunity to request an
informal proceeding before the Suitability Review Committee.
(f) A request for an informal proceeding
shall be submitted in a form and manner determined by the Commission and no
later than 14 business days following the effective date of the adverse
suitability recommendation. Requests received after 14 business days may be
considered at the discretion of the Executive Director or the
Committee.
(g) On notification of
an adverse suitability recommendation and receipt of an informal proceeding
request, the Committee shall initiate a proceeding, make a recommendation
and/or take other action(s) after consultation with the Executive
Director.
(h) If an applicant or a
subject does not make a timely request for an informal proceeding before the
Committee, the Executive Director may forward the adverse suitability
recommendation to the Committee for a review, make a suitability determination,
or take any action consistent with M.G.L. c. 94G.
(5) The Committee shall:
(a) Consider and review whether offense(s) or
information resulting in a Mandatory Disqualification or a Presumptive Negative
Suitability Determination under 935 CMR 501.801:
Table A, 935
CMR 501.802:
Table B and 935 CMR 501.803:
Table
C, as applied to the subject, renders the subject unsuitable for
licensure or registration;
(b)
Consider and review whether offense(s) or information not otherwise set forth
in 935 CMR 501.801:
Table A, 935 CMR 501.802:
Table
B and 935 CMR 501.803:
Table C would result in a
Negative Suitability Recommendation and renders the subject unsuitable for
licensure or registration; and
(c)
Subsequent to its review of a suitability matter, make recommendations to the
Executive Director, or the Commission, or a Commission Delegee.
(6) When reviewing an adverse
suitability recommendation by staff that there is an offense resulting in a
Mandatory Disqualification, the Commission shall consider credible and reliable
information demonstrating that:
(a) The
disqualifying event was based on erroneous information or evidence;
and
(b) The subject can demonstrate
that prior to the informal proceeding, the adverse suitability recommendation
can no longer be supported because the error was corrected.
(7) When reviewing an offense
resulting in a Presumptive Negative Suitability Determination, the committee
shall take into consideration the following factors:
(a)
Nature and specific
circumstances of the offense or incident:
1. Time since the offense or
incident;
2. Number of offenses or
incidents;
3. If criminal, sentence
imposed and length, if any, of incarceration;
4. If criminal, sentence imposed and length,
if any, of parole or probation; and
5. Relationship of offense or incident to
nature of work to be performed;
(b)
Mitigating
factors:
1. Age of the subject at
the time of the offense or incident; and
2. Whether offenses or incidents were
committed in association with dependence on drugs or alcohol from which the
subject has since recovered;
(c)
Conduct since time of the
offense or incident:
1. If
criminal, any relevant evidence of rehabilitation or lack thereof, such as
information about compliance with conditions of parole or probation, including
orders of no contact with victims and witnesses; and
2. The subject's conduct and experience since
the time of the offense including, but not limited to, professional or
educational certifications obtained; and
(d) Any other relevant information, including
information submitted by the subject to the Committee or requested by the
Commission.
(8) The
Committee may make a Negative Suitability Determination in the following
circumstances:
(a) On the receipt of the
staffs Negative Suitability Recommendation that there is credible and reliable
information in the five years immediately preceding the application:
1. The applicant's or Licensee's prior
actions posed or would likely pose a risk to the public health, safety, or
welfare if a License or registration is granted or renewed; and
2. The risk posed by the applicant's or
Licensee's actions relates or would likely relate to the operation of an
MTC.
(b) On review of
this recommendation, the Committee shall consider whether the staff has carried
its burden of demonstrating:
1. The
applicant's or Licensee's prior actions posed or would likely pose a risk to
the public health, safety, or welfare if a License or registration is granted
or renewed; and
2. The risk posed
by the applicant's or Licensee's actions relates or would likely relate to the
operation of an MTC.
(9) Where an MTC Agent listed on the
application for licensure in accordance with 935 CMR 501.101(1) is found to
have no suitability issue under 935 CMR 501.801: Table A, or
to have overcome any suitability issue, the Agent shall not be subject to a
subsequent suitability review under 935 CMR 501.802: Table B
and 935 CMR 501.803: Table C.
(a) Nothing in 935 CMR 501.800 relieves the
requirement that the applicant or Licensee conduct background checks on its
agents and disclose to the Commission's staff any suitability issue(s) that
arise as a result of those checks.
(b) Any subsequent disclosure of background
check information for an MTC Agent required to be listed and evaluated pursuant
to 935 CMR 501.101(1), will be assessed pursuant to 935 CMR 501.801:
Table A or on other grounds for a Negative Suitability
Determination only.
(c) Nothing in
935 CMR 501.800 precludes the Commission from initiating a suitability review
based on background information received after the Commission's initial
suitability review.
(10)
The Executive Director in consultation with the Committee may determine that a
subject's suitability warrants the Commission's consideration. The Executive
Director may also remand a matter to staff for further investigation prior to
making a determination. The Commission may consider the determination when
acting on the application or renewal.