935 CMR, § 501.800

Current through Register 1533, October 25, 2024

Section 501.800 - Suitability Standard for Licensure and Registration

(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.