 Department of Early Education and Care SECTION 41. The General Laws are hereby amended by striking out chapter 28A and inserting in its place the following chapter:-Section 1. The following words as used in this chapter shall, unless the context otherwise requires, have the following meanings: - "Adoption," the establishment of the legal relationship of parent and child in accordance with the provisions of chapter 210. "Child'', any person under the age of 18 or under the age of 22 if such child is meets the definition of a school-age child with a disability "Family foster care'', substitute parental care in a family given in a private residence for up to six children under 18 years of age on a regular, 24 hour-a-day, residential basis by anyone other than a relative by blood or marriage; provided, however, that such care may be provided for more than six children in order to place siblings in the same residence. "Group care facility'', any facility which provides care and custody for one or more children under 18 years of age, on a regular, 24 hour-a-day, residential basis by anyone other than a relative by blood or marriage, notwithstanding the fact that such care may include educational instruction; provided, private schools shall be considered group care facilities only if such schools provide special education services to children with disabilities. Group care facility shall not mean family foster care, a hospital, ward, or comprehensive center licensed under the provisions of section 19 of chapter 19, a hospital, ward, or comprehensive center operated by the commonwealth or any subdivision thereof, a hospital, institution for unwed mothers, convalescent or nursing home, rest home, or infirmary licensed under the provisions of chapter 111 or any facility licensed under the provisions of section 7 of chapter 111E. Group care facility shall not be limited to a facility defined as a group residence in section 1 of chapter 143. "Office'', the office of residential and placement licensure within the executive office of health and human services. "Person'', any individual, partnership, corporation, association, organization, or trust, or any department, agency, or institution of the federal government or of the commonwealth or any political subdivision thereof. "Placement agency'', a department, agency, or institution of the Commonwealth, or any political subdivision thereof, or any organization incorporated under chapter 180, one of whose principal purposes is providing custodial care and social services to children, which receives by agreement with a parent or guardian, by contract with a state agency, or as a result of referral by a court of competent jurisdiction, any child under 18 years of age, for placement in family foster care or a group care facility, or for adoption. "School-age child with a disability," a child with a disability who requires special education as determined in accordance with the provisions of chapter 71B, and its regulations. "Temporary shelter facility'', any facility which operates to receive children under 18 years of age for temporary shelter during the day or night when such children request shelter therein, or when such children are placed there by a placement agency, a law enforcement agency, or a court with authority to make such placement. Temporary shelter facility shall not mean family foster care or a group care facility, a police station, or a town lockup. Section 2. (a) There shall be within the executive office of health and human services an office of residential and placement licensure. The secretary may establish such divisions, commissions, units, and other offices and employ or appoint such staff and consultants as may be necessary for the proper and efficient administration of the office, and may establish regional advisory councils, including functions, guidelines, and procedures for recognition of such councils. (b) The secretary of health and human services (hereinafter, the secretary) shall, pursuant to the provisions of chapter 30A, and after consultation with the boards of education, the executive office of public safety, and the departments of housing and community development, and economic development, promulgate rules and regulations to carry out the purposes and functions of this chapter. Such regulations, as they relate to standards and requirements for licensure and approval of group care, placement agency, or temporary shelter that shall be appropriate for the protection of the health, well-being and development of children and shall include, but need not be limited to, provisions regarding (1) admission policies and procedures; (2) safe transport of children; (3) physical plant and equipment; (4) the number and qualifications of staff; (5) the nature of programs of care or treatment; (6) health care and nutrition; (7) rights and responsibilities of parents, children, and staff; (8) record-keeping and other procedures relevant to evaluation including, but not limited to, reports by placement agencies detailing the number and nature, as defined jointly by the university of Massachusetts center for adoption research and policy in the city of Worcester and the department of social services, of adoptions processed during each calendar year to be filed with the center on or before January 30 of each year; (9) organization, financing, and administration; and (10) the imposition of civil fines and other sanctions. Fines authorized by this section shall range from $100 to $1,000 per violation, per day. (c) Such regulations may establish classifications for licensure or approval as are necessary to achieve the purposes of this chapter; provided, that the standards and requirements for approval of a placement agency, group care facility, or temporary shelter operated by a department, agency, or institution shall be the same as or higher than those applicable to the licensure of comparable facilities or services. Such regulations shall establish reasonable license fees and appropriate terms for all licenses granted under the provisions of this section. No such license or approval shall be transferable. A provisional license or approval shall be issuedfor a period not to exceed six months and in no case shall a person operate under a provisional license, provisional approval, or renewal thereof for more than 12 consecutive months. Any rule or regulation involving medical treatment shall include appropriate exemptions for children whose parents object thereto on the ground that it conflicts with the tenets and practice of a recognized church or religious denomination of which the parent or child is an adherent or member. The office shall conduct a comprehensive review of rules and regulations established under this section at least once every five years. (d) The office may, at any reasonable time, conduct announced and unannounced visits and inspections of any facility operated by a person who is subject to licensure or approval under this chapter in order to determine whether such facility is being operated in compliance with law and with the rules and regulations established under this chapter, and may issue administrative subpoenas. (e) The office shall provide consultation to assist applicants in meeting its requirements for licensure or approval, and in meeting other applicable state and local requirements relative to fire, safety, and zoning codes. (f) The office shall promptly evaluate any notice transmitted to the office by the department of social services under clause (9) of section 51B of chapter 119. The office may, at any time, determine that an investigation is necessary and may conduct an investigation in accordance with this chapter. Such investigation and evaluation shall determine whether the facility being operated by a person subject to licensure or approval under this chapter is being operated in compliance with this chapter and with the rules and regulations established under the chapter. If, during the course of any such investigation or licensing study conducted by the office, any agent or employee of the office receives or discovers information concerning the occurrence of child abuse or neglect, such agent or that employee shall make a report to the department of social services, pursuant to the provisions of section 51A of chapter 119. Section 3. The office shall issue and may renew a license to any organization incorporated under chapter 180 which meets applicable standards and requirements to establish and maintain a placement agency. Section 4. (a) No person shall operate a group care facility, placement agency, or temporary shelter unless such person is licensed by the department; provided, that a department, agency or institution of the commonwealth or any political subdivision thereof shall obtain an approval rather than a license in order to operate a group care facility, placement agency, or temporary shelter. (b) No person shall maintain a child in family foster care without placement supervision and approval by a placement agency. (c) No person shall place or knowingly facilitate the placement of any child as defined in section 2 in the care or control of any other person not related to such child by blood or marriage, or in the care or control of any organization other than a licensed or approved placement agency, for purposes of adoption in the commonwealth. No person unrelated to such a child by blood or marriage, and no organization other than a licensed or approved placement agency, shall receive such a child for purposes of adoption, except from a licensed or approved placement agency. Nothing herein shall prevent the placement of a child who is not a citizen of the United States when a home study of the prospective parent or parents prior to the placement of the child is performed by a licensed placement agency. For the purpose of this section the spouse of the natural parent of such a child shall be deemed to be related by marriage to said child. Section 5. (a) Notwithstanding any general or special law, rule, or regulation to the contrary, no child shall be placed in a foster home prior to the approval of the home by any individual or agency licensed pursuant to this chapter by the office, except an emergency placement in a foster home limited to relatives or long-term friends of the child's family. (b) Said approval shall include a criminal offender record information check on all persons 18 years of age or older residing at the home. In the event of any emergency placement, a criminal offender record information check shall be completed on all persons 18 years of age or older residing at said home within ten working days of placement. If the result of any of said checks shows that any occupant of said home has a criminal record involving violence, abuse, or exploitation against any person, which bears adversely upon the person's ability to assume and carry out the responsibilities of a foster parent or poses a serious threat of harm to a child, the home shall not be approved by the office, no child shall be placed in said home, and any emergency placement shall be removed forthwith. Section 6. (a) A person whose consent is required by section 2 of chapter 210 may, prior to surrender, request from a placement agency background information pertaining to the prospective adoptive family in which the placement agency expects to place the child if surrendered. The nature of the background information shall be established in the rules and regulations promulgated by the office as authorized by section 2; provided, however, that no agency shall be required to reveal the identity or geographical location of the prospective adoptive family to such person. The placement agency shall provide said background information in writing unless the person whose consent is required signs a written waiver of the request. (b) Each placement agency shall register with an adoption resource exchange in the commonwealth any child whose goal is adoption, whether the child is free for adoption or at legal risk, for whom the placement agency has been unable to identify a specific adoptive family or initiate the adoption process with a prospective adoptive family within 60 days of the determination of the goal of adoption. For the purposes of this chapter, an adoption resource exchange shall mean a nonprofit agency the primary purpose of which is to link children awaiting placement with permanent families by providing information and referral services and by the recruitment of potential adoptive families. Section 7. Subject to the requirements of chapter 30A, and in accordance with the rules and regulations promulgated by the secretary, the office may suspend, revoke, or refuse to issue or renew the license of any person, assess a civil fine within the limits prescribed by section 3 of this chapter, or impose any other sanctions it deems appropriate, including but not limited to placing a license on probationary status, in accordance with rules and regulations promulgated by the secretary. Such action may be taken if such person: (1) fails to comply with applicable rules and regulations; (2) furnishes or makes any misleading or false statement or report required under such rules and regulations; (3) refuses to submit any reports or make available any records required by such rules and regulations; or (4) refuses to admit representatives of the office at any reasonable time for purposes of investigation or inspection. The office may temporarily suspend a license in an emergency situation without a prior hearing; provided, however, that upon request of an aggrieved party, a hearing shall be held as soon after the license is suspended as is reasonably possible. Any party aggrieved by a final decision of the office in any adjudicatory proceeding under this section may petition for judicial review in accordance with the provisions of section 14 of chapter 30A. Section 8. No person shall cause to be published in a newspaper distributed anywhere in the commonwealth or to be broadcast on a radio or television station in the commonwealth an advertisement or notice for the placement or reception of a child for family foster care, temporary shelter care, or adoption unless such advertisement is placed by a licensed or approved placement agency, group care facility, or temporary shelter facility, or with the written approval of the office. Such advertisement or notice shall include the license issued to the provider or agency pursuant to this chapter. Section 9. Any person who violates the provisions of sections 4 or 8 of this chapter may be punished for each such violation by a fine of up to $5,000 or by imprisonment for not more than one year, or both. Section 10. Upon petition of the office, the superior court shall have jurisdiction to enjoin any violation of the provisions of sections 4 or 8 of this chapter or to take such other action as equity and justice may require. Section 11. Upon petition of the office, the superior court shall have jurisdiction to enter an order permitting the office to enter and inspect, under such conditions as the court deems appropriate, a facility operated by a person whom the office has reasonable cause to believe is subject to licensure or approval under this chapter. |