10-148-6 Me. Code R. § 9

Current through 2024-25, June 19, 2024

Section 148-6-9 - CHILD CARE PROVIDER ELIGIBILITY AND REQUIREMENTS

A. Child Care Providers who can receive reimbursement from the Child Care Subsidy Program under this rule must either be a Child Care Provider licensed under DHHS Division of Licensing rules, a Child Care Provider Licensed under New Hampshire DHHS Child Care Licensing Unit, or a License-Exempt Child Care Provider as defined in the rule and must meet the requirements of the provision.

B. All Licensed and nonrelative License-Exempt Child Care Providers, except for Child Care Providers Licensed under New Hampshire DHHS Child Care Licensing Unit, must maintain at least a minimal level on Maine QRIS.

C. All Licensed Child Care Providers, except for Child Care Providers Licensed under New Hampshire DHHS Child Care Licensing Unit, must comply with all applicable DHHS Licensing rules.

D.Provider Agreement

1. Before Subsidy can be approved, the Department and the Child Care Provider will execute a Provider Agreement.

2. The Provider Agreement will set forth the responsibilities of both parties and shall include:

a. Operations, Referrals, Parent Fee Collection, Reimbursement, Reporting, Record Keeping, Site Visits in conformance with 42 U.S.C. § 9858c(c)(2)(K), Health and Safety Requirements, Department's Responsibilities, Child Care Market Rates, and Child Care Hours of Operations.

3. The Provider Agreement will be executed on forms authorized by the Department.

4. The agreed upon maximum payment to the Child Care Provider for Child Care Subsidy will:

a. Be the total of the Subsidy payment and the Parent fee;

b. Will not exceed the Department established Market Rate or the Child Care Provider's rate, whichever is less; and

c. Will not exceed the rate charged to the Child Care Provider's other Parents for equivalent Child Care Services as defined in the Child Care Provider's public rate schedule.

5. The Department will pay the Child Care Provider the agreed upon weekly rate.

6. The Child Care Provider will collect the Parent Fee portion of the payment from the Parent on a weekly basis as agreed to in the Provider Agreement.

7. Enrollment standards must be followed.

8. All Subsidy payments to Child Care Providers will be for services provided between the beginning date and the ending date of the Award Letter.

9. Payments outside of the Provider Agreement dates are not allowed.

10. No payments to Child Care Providers will be made when the Child Care Provider is a member of the Subsidy Parent's Family or to a Child Care Provider who lives in the same household.

E.Background Checks

1. Licensed and License-Exempt Child Care Provider (excluding Relative Child Care Providers) are required to submit a request for a criminal background check for all current and prospective staff members, all adults residing in the location where Child Care Services are being provided, any individuals whose activities involve the care or supervision of Children or who have unsupervised access to Children, and the Child Care Provider him/herself as required by federal law (45 C.F.R. § 98.43) .

2. The following background checks are required:

In the State where the individual resides) includes all the following checks: Child Protective Services (CPS), State Bureau of Identification (SBI) with fingerprints, Department of Motor Vehicles (DMV), State Sex Offender Registry, National Crime Information Center (NCIC) National Sex Offender Registry, and FBI fingerprint check using Next Generation Identification.

In each state where the individual has resided for the previous five (5) years) includes all the following checks: Child Protective Services (CPS), State Bureau of Identification (SBI) with or without fingerprints, Department of Motor Vehicles (DMV), State Sex Offender Registry, NCIC National Sex Offender Registry, and FBI fingerprint check using Next Generation Identification as required by federal law (45 C.F.R. § 98.43) .

3. Background checks must be completed at least once every five (5) years.

4. A Child Care Provider shall not be required to submit a request if the individual received a qualifying background check within the last five (5) years.

5. The State may charge the Child Care Provider for the actual cost of the processing and administration of background checks.

6. The State shall provide results of the background check to the Child Care Provider and the current or prospective staff member indicating eligibility or ineligibility within forty-five (45) calendar days of the Child Care Provider's submitted request.

7. If a current or prospective staff member is ineligible due to the results of the background check:

a. The results must be provided to the Child Care Provider without revealing any disqualifying crime or other related information regarding the individual; and

b. The results must be provided to the individual and include information related to each disqualifying crime, along with information and the opportunity to appeal.

8. The results of individual background checks shall not be publicly released or shared, unless the data is unidentifiable and/or aggregated.

9. A prospective staff member may begin work for a Child Care Provider after receiving qualifying results of either the Federal Bureau of Investigation fingerprint check using Next Generation Identification, or State Bureau of Identification (SBI) with fingerprints. This staff member must always be supervised, by an individual who received a qualifying result on a background check within the past five (5) years, until the results of all aspects of the background check have been received.

10. Unsatisfactory results of any component of a background check for any individual described in section 7.1 (above) will disqualify the Provider that employs, proposes to employ, houses, or otherwise provides such individual access to children from receiving payment for Child Care Services provided under this chapter. Unsatisfactory result is defined by one (1) or more of the following:

a. A conviction for any Class A crime (as defined by State statute) or its equivalent;

b. A conviction within the last ten (10) years for any Class B or C crime or its equivalent that involved the use of force;

c. A conviction for any crime within the last ten (10) years that resulted in time served in a correctional facility;

d. A conviction for any crime in the last ten (10) years that jeopardized the health and safety of a minor;

e. More than one (1) conviction within the last three (3) years based on an action which would be deemed, by the Department, as detrimental to the welfare of a Child;

f. A drug-related offense committed during the preceding five (5) years, unless the Department determines the individual is eligible pursuant to a review of the conviction or convictions;

g. A conviction for an OUI or Driving to Endanger within the last three (3) years. The Department may approve Child Care Subsidy if another adult in the household (not the Child Care Provider) is found to have this conviction and he or she signs a written agreement not to transport Children receiving Child Care Services;

h. More than one (1) operating under the influence (OUI) conviction, with the latest conviction in the last five (5) years;

i. Three (3) or more convictions in the last five (5) years for speeding in excess of twenty (20) miles per hour over the speed limit by the Child Care Provider. The Department may approve Child Care Subsidy if the Child Care Provider signs a written agreement not to transport Children while providing Child Care Services;

j. A suspended driver's license at the time of application by the Child Care Provider. The Department may approve Child Care Subsidy if the Child Care Provider signs a written agreement not to drive the Children while providing Child Care Services;

k. A substantiated finding of Child abuse or neglect by the Department;

l. A refusal to consent to participation in a background check;

m. Materially false statements made relating to a background check;

n. A registration or requirement to register on a State or National Sex Offender Registry; and/or

o. A conviction of murder.

11.Appeals

If the Child Care provider or individual do not agree with the interpretation of the information in the background check, the Child Care Provider or individual have the right to request an administrative hearing to appeal. Appeals are limited to only the interpretation of information contained in its background check.

The Child Care Provider or individual's request for an appeal must be made within ten (10) days of notice that ability to be employed as a Child Care Provider has been impacted as a result of information contained in your background check.

To appeal, the Child Care Provider or individual can write a letter requesting a hearing. That letter should contain any information you think will help your claim that the Department incorrectly interpreted information in your background check. Letters should be sent to the Office of Administrative Hearings.

Except as otherwise provided here, the administrative hearings shall be conducted pursuant to procedures for Orders of Reference in the Department's Division of Administrative Hearings Regulations, as amended from time to time. The Order of Reference shall state as the issue for hearing, "Whether the Department was correct when interpreting the background check information for [name of the appellant] and determining that [name of the appellant] was ineligible to provide care as a Child Care Provider that receives Child Care Subsidy."

The Division of Administrative Hearings will schedule a hearing pursuant to its rules. If the bureau, division, or office that issued the substantiation decision believes that the request for hearing was not timely or that there is another reason why the appellant is not entitled to a hearing, it may request that the Chief Administrative Hearing Officer dismiss the matter or that a hearing not be held. The Division of Administrative Hearings regulations shall govern the admission and exclusion of evidence at the Administrative Hearing.

F.Emergency Plan:

All Child Care Providers (excluding Relative Child Care Providers) must have an Emergency Plan that is updated annually as required by federal law (45 C.F.R. § 98.16) that includes:

1. Procedures for evacuation, relocation, shelter-in-place and lock down, staff and volunteer emergency preparedness training and practice drills, communication and reunification with families, continuity of operations, and accommodation of infants and toddlers, children with disabilities, and children with chronic medical conditions; and

2. Procedures for staff and volunteer emergency preparedness training and practice drills, including training requirements for Child Care Providers of services for which assistance is provided under CCDF at § 98.41(a)(1) (vii).

G.Health and Safety Standards

All Child Care Providers, Teachers, and directors associated with Child Care Providers (excluding Relative Child Care Providers) must have attained a minimum of a Star One (1) quality rating from Maine Roads to Quality and successfully completed the Department-Approved orientation training that includes, at a minimum, the Health and Safety Standards below, within ninety (90) calendar days of beginning his/her work with Children as required by federal law (45 C.F.R. § 98.41) :

1. Prevention and Control of Infectious Diseases is defined by following proper methods of handwashing cleaning and sanitizing, and disinfecting surface areas, bedding, and toys/objects, by not attending Child Care Services when ill, and to have Children stay current on vaccinations which are nationally recommended;

2. Prevention of Sudden Infant Death Syndrome (SIDS) and use of Safe Sleep Practices is defined as following practices to reduce the risk of SIDS; such as placing a baby to sleep on his or her back on a firm mattress using a safety-approved crib, removal of any lose bedding, and while sleeping making sure the baby's head stays uncovered, and the baby does not get overheated;

3. Administration of medication, consistent with parental consent is defined as Child Care Providers and staff must be aware of and follow state regulations, laws, and program policies and procedures. Directors, supervisors, and owner/operators are responsible to prepare and enforce policies for accurate medication administration procedures. They must also make sure that identified staff are well trained to administer medication to Children by following State-approved medication administration training guidelines. Medicines administered in Child Care Centers, family group homes, and Family Child Care programs should be limited to prescription or nonprescription (over-the-counter or OTC) medications. All medication administration must include parental/guardian written, documented permission, and medication logs. Medications must be ordered by a prescribing health professional for a specific Child. Orders from the prescribing health professional should specify the medical need, medication, dosage, and length of time to give medication;

4. Prevention of and response to emergencies due to food and allergic reactions is defined by having classroom procedures for policies, food preparation and food label reading, food services, cleaning and sanitizing, field trips, and recognizing symptoms. By also having a food allergy action plan or emergency care plan in place for a Child with severe food allergies;

5. Building and physical premises safety, including identification of and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic is defined as a safe space where age appropriate planning and checks take place inside and outside for toys, furniture, materials, and equipment. Proper supervision takes place even during naptime. Prepare and prevent to ensure Children in care can move around the space and explore;

6. Prevention of Shaken Baby Syndrome, Abusive Head Trauma, and Child maltreatment is defined as all caregivers/teachers who are in direct contact with Children including substitute caregivers/Teachers and volunteers, should receive training on how to prevent shaken baby syndrome/abusive head trauma, recognize the potential signs and symptoms of shaken baby syndrome/abusive head trauma, learn strategies for coping with a crying, fussing or distraught Child, and learn the development and vulnerabilities of the brain in infancy and early childhood;

7. Emergency preparedness and response planning for emergencies resulting from a natural disaster, or a man-caused event must also include procedures for evacuation; relocation; shelter-in-place and lockdown; staff and volunteer training and practice drills; communications and reunification with families; continuity of operations; and accommodations for infants and toddlers, Children with disabilities, and children with chronic medical conditions: standard is defined as every Child Care Facility needs a written plan for emergencies. Every person who works in a Child Care Facility, every early care and education (ECE) professional, should know his or her role in emergency situations, and how to follow the plan to keep Children and adults safe if an emergency occurs. A written emergency preparedness plan should include step-by-step procedures for evacuation, relocation, shelter-in-place, lockdown, communication and reunification with families, and planning for vulnerable Children;

8. Handling and storage of hazardous materials and the appropriate disposal of bio-contaminants is defined as any material that either contains poison or is poisonous, and possibly can cause serious problems or even death. Exposure can take place through inhalation, skin contact, or ingestion. When not in use, all hazardous materials should be stored in the original container in a locked cabinet or room that has a child-resistant lock and is not accessible to children. Chemicals should be stored separately from food and medications. All hazardous materials should be used per the manufacturer's instructions on the label. Pesticides and other chemicals should not be used when children are present. Chemicals used to treat lawns should be restricted to chemicals that are approved for use in areas where Children will be present;

9. Appropriate precautions in transporting Children (if applicable) is defined as all providers and staff follow state laws and regulations, program polices, liability, and insurance. Written transportation policies should be in place and should address the safe transport of Children by vehicle to and from the facility, home pickups and deliveries, and special outings such as field trips. Policies should also address the safe care of Children around vehicles, such as during drop-off and pickup times, in parking lots, or anywhere that children may be exposed to moving vehicles;

10. Pediatric first-aid and cardiopulmonary resuscitation (CPR) is defined as Providers have learned the priorities, roles, and responsibilities of a rescuer providing first aid or CPR to a Child or an Infant. Included is how to help when a child or infant is choking. Proper certification is gained through training; and

11. Recognition and reporting of Child abuse and neglect is defined as a threat to a Child's health or welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these, by a person responsible for the Child. Any provider suspecting abuse and/or neglect must report this information to Child Protective Intake Services, which is staffed twenty-four (24) hours a day, seven (7) days a week. The provider must maintain documentation that a report has been made.

H. All Child Care Providers, Teachers, and directors associated with Child Care Providers (excluding Relative Child Care Providers) must successfully complete the Department-Approved annual training, that includes, at a minimum, inclusion of Children with Special Needs, Homelessness, and the minimum Health and Safety Standards listed below as required by federal law (45 C.F.R. § 98.41) :

1. Prevention and Control of Infectious Diseases;

2. Prevention of Sudden Infant Death Syndrome and use of Safe Sleep Practices;

3. Administration of medication, consistent with standards for parental consent;

4. Prevention of and response to emergencies due to food and allergic reactions;

5. Building and physical premises safety, including identification of and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic;

6. Prevention of Shaken Baby Syndrome, Abusive Head Trauma, and Child maltreatment;

7. Emergency preparedness and response planning for emergencies resulting from a natural disaster, or a man-caused event;

8. Handling and storage of hazardous materials and the appropriate disposal of bio contaminants;

9. Appropriate precautions in transporting Children (if applicable);

10. Pediatric first-aid and cardiopulmonary resuscitation (CPR); and

11. Recognition and reporting of Child abuse and neglect.

I. Only Parents or those persons authorized in writing by the Parents are allowed to remove the Child(ren) from the Child Care Provider's care.

J. All persons authorized to remove Children from the Child Care Providers care must be identified in the Child Care Provider's records.

K. Additional rules specific to License-Exempt Child Care Providers (excluding Relative Child Care Providers) as required by federal law (45 C.F.R. § 98.42) .

1. Allow the Department to perform at least annual health and safety monitoring visit. The Department may also inspect License-Exempt Child Care Providers' facilities upon receipt of a report or complaint, and to conduct random health and safety inspections, all with or without notice at the Department's sole discretion.

2. Upon request, provide documentation that the Children receiving Child Care Subsidy are age-appropriately immunized and meet the latest recommendation for childhood immunizations in Maine, as recommended by the Department's Center for Disease Control (CDC). A ninety (90) calendar day grace period shall be granted while Parents are taking the necessary actions to comply with the immunization requirement. Children who receive care in his/her own home may be exempted from the immunization requirement.

L.Additional rules specific to License-Exempt In-Home Child Care Provider (excluding Relative Child Care Providers)

1. During the initial application process with the In-Home Child Care Provider, the Department must inform the In-Home Child Care Provider that by federal law, they may be considered an employee of the Parent with the requirement that they be paid minimum wage, as well as being subject to withholding taxes. The In-Home Child Care Provider is classified as a domestic service worker under the Fair Labor Standards Act (FLSA) and, as such, may be subject to requirements of the FLSA. The In-Home Child Care Provider will sign a Provider Agreement Form indicating that he or she has received this information.

2. During the initial program application process with the Parent, the Department must inform the Parent in writing that as the employer of the In-Home Child Care Provider:

a. They are responsible for compliance with the requirements of the FLSA;

b. The assessed Parent Fee may be insufficient to constitute compliance; and

c. To comply with State and Federal Labor laws they may be responsible for the balance of any payment for an In-Home Child Care Provider that may exceed the Market Rate.

3. The Department will require a signed receipt from the Parent indicating that the Parent has received and understands the information outlined above.

M.Child Care Provider Ineligible or Disqualified to receive Child Care Subsidy Payments

1. Child Care Providers who previously had agreements with the Department and who meet any of the following conditions are not eligible to receive Child Care Subsidy Payments on behalf of Parents receiving Child Care Subsidy and the Parent must select a new Child Care Provider in order to continue to receive Child Care Subsidy twelve (12)-calendar day advance notification is not required). If the Child Care Provider owes money to the Department; including Overpayments in other programs;

a. The Child Care Provider was found to be engaged in Misrepresentation in connection with Child Care Subsidy or other State benefit assistance program;

b. The Child Care Provider has been sanctioned the Department; or

c. The Child Care Provider had a previous Provider Agreement terminated by the Department for any of the following:

i. Notification by the Department that the Child Care Provider's license or certification has been revoked, voided, or suspended;

ii. Misrepresentation of Child Care Services provided in the Child Care Provider's billing;

iii. Discrimination against a Parent receiving Child Care Subsidy, in the provision of service and/or fee assessment;

iv. Repeated Failure of the Child Care Provider to submit timely, complete and accurate billings, despite the Department's efforts to provide technical assistance to the Child Care Provider;

v. Any violation of the Provider Agreement which constitutes a breach of contract;

vi. Non-compliance of any policy set forth in the Provider Agreement;

vii. If the provider does not return a completed and signed Provider Agreement within thirty (30) calendar days of the Department's request for this information;

viii. An individual providing Child Care Services as a License-Exempt Child Care Provider but whose child care license or certification has been revoked, suspended, voided, or denied by the Department or if to avoid revocation, suspension, or denial has surrendered his or her license or certification; or

ix. An individual providing care as a License-Exempt Child Care Provider but whose child care conditional license or conditional certification has been voided by the Department or who has surrendered his or her conditional license or conditional certification to avoid the Department voiding said license or certification; and

x. An individual providing care as a Non-relative License-Exempt Child Care Provider that does comply with attempts being made to schedule health and safety monitoring. Non-compliance means two (2) phone calls or two (2) scheduled visits that the Child Care Provider does not respond to.

2. Child Care Providers who are found to have committed a Misrepresentation must be referred to the DHHS Fraud Investigation Unit pursuant to 22 M.R.S. §13.

10-148 C.M.R. ch. 6, § 9