An Act To Amend Certain Laws Governing Child Care Providers
Maine Legislature, Session 128, LD 1423
Committee: Health and Human Services
Sponsors: LIBBY
Amends: 22 MRSA §3736, 22 MRSA §8301-A, 22 MRSA §8302-A, 22 MRSA §8303-A, 22 MRSA §8309

Legislative Document
No. 1423
S.P. 493
In Senate, April 11, 2017
An Act To Amend Certain Laws Governing Child Care Providers
Reference to the Committee on Health and Human Services suggested and ordered printed.
HEATHER J.R. PRIEST
Secretary of the Senate
Presented by Senator LIBBY of Androscoggin.
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  22 MRSA §3736, sub-§4 is enacted to read: 
4.  Cost of child care.  If the cost of child care exceeds the amount of subsidy for a 
publicly funded child care program for an otherwise eligible applicant, the applicant may 
pay the outstanding balance of child care costs after subtracting the amount of subsidy 
without losing the subsidy. 
Sec. 2.  22 MRSA §8301-A, sub-§1-A, as amended by PL 2009, c. 211, Pt. B, 
§§20 and 21, is further amended to read: 
1-A.  Definitions.  As used in this chapter, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Child care center" means: 
(1)  A house or other place in which a person maintains or otherwise carries out a 
regular program, for consideration, for any part of a day providing care and 
protection for 13 or more children under 13 years of age; or 
(2)  Any location or locations operated as a single child care program or by a 
person or persons when there are more than 12 children being cared for. 
B.  "Child care facility" means a child care center, small child care facility or nursery 
school.  "Child care facility" does not include a facility operated by a family child 
care provider, a youth camp licensed under section 2495, programs offering 
instruction to children for the purpose of teaching a skill such as karate, dance or 
basketball, a formal public or private school in the nature of a kindergarten or 
elementary or secondary school approved by the Commissioner of Education in 
accordance with Title 20-A or a private school recognized by the Department of 
Education as a provider of equivalent instruction for the purpose of compulsory 
school attendance.  Any program for children under 5 years of age that is located in a 
private school and programs that contract with one or more Child Development 
Services System sites are required to be licensed as a child care facility. 
B-1.  "Director" means the individual having responsibility for administering and 
carrying out the policy of  a child care facility. If the child care facility is owned or 
operated by a corporation or trust, "director" means the individual delegated to carry 
out or enforce the policies of the child care facility developed by the governing body 
or trustees of the corporation or trust. 
C.  "Family child care provider" means a person who provides day care in that 
person's home on a regular basis, for consideration, for 3 5 to 12 children under 13 
years of age who are not the children of the provider or who are not residing in the 
provider's home.  If a provider is caring for children living in that provider's home 
and is caring for no more than 2 4 other children, the provider is not required to be 
certified as a family child care provider. 
C-1.  "Infant" means a child who has not attained 12 months of age. 
D.  "Nursery school" means a house or other place in which a person or combination 
of persons maintains or otherwise carries out for consideration during the day a 
regular program that provides care for 3 or more children 33 months of age or older 
and under 8 years of age, provided that: 
(1)  No session conducted for the children is longer than 3 1/2 hours in length; 
(2)  No more than 2 sessions are conducted per day; 
(3)  Each child in attendance at the nursery school attends only one session per 
day; and 
(4)  No hot meal is served to the children. 
"Nursery school" does not include any facility operated as a child care center or small 
child care facility licensed under subsection 2, a youth camp licensed under section 
2495 or a public or private school in the nature of a kindergarten approved by the 
Commissioner of Education, in accordance with Title 20-A. 
E.  "Small child care facility" means a house or other place, not the residence of the 
operator, in which a person or combination of persons maintains or otherwise carries 
out a regular program, for consideration, for any part of a day providing care and 
protection for 3 to 12 children under 13 years of age. 
F.  "Toddler" means a child 12 months of age or older and under 36 months of age. 
Sec. 3.  22 MRSA §8301-A, sub-§2, as amended by PL 2005, c. 640, §2, is 
further amended to read: 
2.  Child care facility licensure.  The owner or operator of a child care facility shall 
pay the licensing fee required under section 8303-A.  A child care facility must be 
licensed under this chapter and must comply with the rules adopted by the commissioner 
under section 8302-A and the fire safety requirements of section 8304-A.  The 
department shall make at least one unannounced inspection of a child care facility 
licensed under this chapter during the term of the license.  The inspection must take place 
between 6 and 18 months after the issuance of the license.  If a child care facility licensed 
under this chapter has been in operation and licensed in good standing for at least 5 
consecutive years, the department shall issue a license renewal for the term of 5 years.  
Except as otherwise provided, a nursery school must meet the requirements of this 
chapter and chapter 1675. 
Sec. 4.  22 MRSA §8301-A, sub-§3, as amended by PL 2005, c. 640, §3, is 
further amended to read: 
3.  Family child care provider certification.  A family child care provider shall pay 
the certification fee required under section 8303-A.  A family child care provider must be 
certified under this chapter and shall comply with the rules adopted by the commissioner 
under section 8302-A and the fire safety requirements of section 8304-A.  The 
department shall make at least one unannounced inspection of a family child care 
provider certified under this chapter during the term of the certificate.  The inspection 
must take place between 6 and 18 months after the issuance of the certificate.  If a family 
child care provider certified under this chapter has been in operation and certified in good 
standing for at least 5 consecutive years, the department shall issue a certification renewal 
for the term of 5 years. 
Sec. 5.  22 MRSA §8301-A, sub-§4, as amended by PL 2005, c. 530, §7, is 
further amended to read: 
4.  Complaints.  Upon receipt of a complaint about a licensed child care facility or a 
certified family child care provider and if the department has reasonable cause to suspect 
that a violation of the licensure or certification requirements has occurred, the department 
may investigate the complaint and enter the premises at any reasonable time for the 
purposes of the investigation.  An investigation under this subsection may involve only a 
suspected violation related to the complaint and may not involve any other matter unless 
the department has reasonable cause to investigate another suspected violation. 
Sec. 6.  22 MRSA §8302-A, sub-§§3 to 5 are enacted to read: 
3.  Background checks.  A staff member undergoing a criminal background check 
under subsection 1, paragraph J, subparagraph (1) or subsection 2, paragraph K, 
subparagraph (2) may be employed by the child care facility or family child care provider 
for up to 90 days without a completed criminal background check while the criminal 
background check is being conducted. 
4.  Extenuating circumstances.  Rules adopted under subsection 1, paragraph A and 
subsection 2, paragraph G and rules involving the ages of children, infants or toddlers 
must provide for extenuating circumstances, including allowing an exception to the rules 
due to an unexpected absence of a staff member or an unexpected drop-off of a child by a 
parent or due to the particular needs of an individual child.  An extenuating circumstance 
under this subsection requires the child care facility or family child care provider to 
document the circumstance and make that documentation available for inspection by the 
department upon request. 
5.  Health and safety of children.  All rules adopted under this section must be 
strictly limited to the health and safety of the children receiving child care services and 
may not unnecessarily interfere with the unrelated business operations of the child care 
facility or family child care provider.  If a child care facility or family child care provider 
provides 35 square feet of usable space per child within the premises occupied by the 
child care facility or child care provider, the child care facility or family child care 
provider is not required to provide 35 square feet of usable space per child in one room.  
A rule under this section may not require a child care facility or family child care 
provider to provide extra clothing for a child, but the child care facility or family child 
care provider may accept and store extra clothing for a child provided by the child's 
parent or guardian.  A rule adopted under this section may not regulate the physical 
arrangement of furniture, equipment, instructional posting or other physical feature of a 
child care facility or the home of a family child care provider unless the rule directly 
involves a health or safety concern.  The department may not require a child care facility 
to inform the department of a change of director of the child care facility. 
Sec. 7.  22 MRSA §8303-A, sub-§1, as enacted by PL 2009, c. 590, §6, is 
amended to read: 
1.  Child care facilities and certified family child care providers.  The department 
shall adopt rules to establish reasonable fees for both initial licensure or certification and 
license or certification renewals for child care facilities and certified family child care 
providers.  The license or certification fee for a 5-year license under section 8301-A, 
subsection 2 or 3 must be 1.5 times the fee for a child care facility or family child care 
provider that has been in operation and licensed or certified in good standing for less than 
consecutive years.  If the department declines a license or certification renewal for a 
child care facility or family child care provider, the department shall return to the facility 
or provider all fees collected pursuant to the license or certification renewal.  Rules 
adopted pursuant to this subsection are major substantive rules pursuant to Title 5, 
chapter 375, subchapter 2-A. 
Sec. 8.  22 MRSA §8309 is enacted to read: 
§8309.  Inspections 
1.  Inspection processes.  Prior to an inspection of a child care facility or family 
child care provider under this chapter, the department shall inform in writing a child care 
facility or family child care provider of the identity of the department official who is 
conducting the inspection.  Upon an inspection of the child care facility or family child 
care provider under this chapter, the department official conducting the inspection must 
immediately contact the on-site manager or individual in charge of the child care facility 
or family child care provider and inform the manager or individual in charge that an 
inspection is taking place.  Upon contact by a department official inspecting a child care 
facility or family child care provider under this subsection, the on-site manager or 
individual in charge of the child care facility or family child care provider may contact an 
owner, director, board member or other person of authority over the child care facility or 
family child care provider if the inspection will involve the on-site manager, individual in 
charge or any other staff member of the child care facility or family child care provider 
that causes a violation of the required child to staff ratio of the child care facility or 
family child care provider.  Before leaving a child care facility or family child care 
provider after an inspection of the child care facility or family child care provider, the 
department official conducting the inspection shall leave with the child care facility or 
family child care provider a copy of all reports and notes taken by the department official 
during the inspection. 
2.  Post-inspection processes; public postings.  An inspection report by the 
department concerning the inspection of a child care facility or family child care provider 
may not be posted on a publicly accessible website for at least 2 weeks after an inspection 
to allow a child care facility or family child care provider to remedy any deficiency or 
violation identified by the inspection.  If a child care facility or family child care provider 
remedies a deficiency or violation cited by an inspection by the department and provides 
verifiable documentation of the remedy within 2 weeks of the inspection, the department 
may not post information of that deficiency or violation in any public posting of the 
results of the inspection. Any public posting by the department regarding a child care 
facility or family child care provider must have the purpose of reasonably informing the 
public of an objectively documented deficiency or violation. 
Sec. 9.  Department of Health and Human Services to create appeals 
board; provider bill of rights.  The Department of Health and Human Services shall 
draft legislation to create an appeals board that consists of members who are not 
appointed by or employed by the department to hear appeals of licensing decisions and 
any other decisions of the department disputed by a licensee or certificate holder or 
applicant for license or certification under the Maine Revised Statutes, Title 22, chapter 
1673. Membership of the appeals board must include members who represent child care 
facility and family child care provider interests in the State.  The department shall 
develop a child care provider bill of rights that details the rights of family child care 
providers and child care facilities under the Maine Revised Statutes, Title 22, chapter 
1673 as privately owned independent businesses able to conduct reasonable business 
practices outside of the area of the regulated activity.  No later than December 6, 2017, 
the department shall submit recommended legislation to create the appeals board and the 
child care provider bill of rights to the Joint Standing Committee on Health and Human 
Services.  The joint standing committee may report out a bill based upon the 
recommended legislation to the Second Regular Session of the 128th Legislature. 
SUMMARY 
This bill makes various changes to the laws governing child care facilities and family 
child care providers, including: 
1.  Allowing a parent who receives a child care subsidy to make up the difference 
between the amount of the subsidy and the total cost of child care without losing the 
subsidy; 
2.  Defining an infant as a child 6 weeks of age or older and under 12 months of age 
and a toddler as a child 12 months of age or older and under 36 months of age; 
3.  Allowing a person to care for up to 4 children in the person's home without that 
person's being required to become certified as a family child care provider; 
4.   Creating a license or certification renewal with a term of 5 years for a child care 
facility or family child care provider that has been in operation and licensed or certified in 
good standing for at least 5 consecutive years; 
5.  Directing the Department of Health and Human Services upon a complaint to 
investigate only that complaint unless there is reasonable cause to suspect another 
violation; 
6.  Providing a period of up to 90 days for a person to work as a staff member for a 
child care facility or family child care provider without the completion of a criminal 
background check while a criminal background check is being conducted; 
7.  Allowing for exceptions to department rules involving child to staff ratios, the 
ages of children and infants and toddlers in cases of extenuating circumstances due to an 
unexpected staff member absence or parent drop-off of a child at the facility or provider 
or due to the particular needs of an individual child; 
8.  Requiring department rules to be narrowly based upon the health and safety of the 
children and not to unreasonably interfere with facility or provider business operations in 
which the health and safety of the children are not involved; 
9.  Requiring in the instance of the department's declining to renew a license or 
certification of a child care facility or family child care provider that the renewal fee paid 
by the facility or provider be refunded; 
10.  Detailing inspection and post-inspection processes including the posting of 
information regarding a child care facility or family child care provider by the department 
on a publicly accessible website; and 
11.  Directing the department to develop recommended legislation to create an 
appeals board composed of members not employed or appointed by the department to 
review department decisions regarding child care facilities and family child care 
providers and to develop a child care provider bill of rights.