Ala. Admin. Code r. 538-X-1-.08 - Request For Variance Of Rules

A requested variance of these Rules may be either temporary or permanent.

(1) Temporary Variance. A patient, caregiver, applicant or licensee may request a temporary variance to relax or suspend these Rules when, in the opinion of the requesting party, circumstances dictate that the requesting party must be out of compliance with these Rules for a period of time specified by the requesting party, not longer than six months. The Commission cannot grant a variance of any type in conflict with the Act; a temporary variance may not issue to excuse the requesting party from the mandates of the Act. Unless otherwise directed, a requesting party may operate consistently with its requested temporary variance pending its final disposition by the Commission. On motion of the requesting party and for good cause shown, the Commission after inquiry, may vote to renew a temporary variance for an additional term not exceeding six months. Circumstances warranting a temporary variance must be unusual, unforeseen to the requesting party, unavoidable (i.e., incapable of being addressed other than through special dispensation to have the Rule not apply), and for the prevention of undue hardship. A motion for temporary variance must be filed electronically through the AMCC website and shall be reviewed and initially decided by AMCC staff. All unchallenged decisions by AMCC staff may be ratified, as appropriate, by a majority vote of the Commission upon due inquiry into the request at the next duly called meeting more than fourteen {14) days from the AMCC staff's decision. Within fourteen {14) days of the AMCC staff's denial of a motion for temporary variance, the aggrieved requesting party may file an electronically submitted notice of appeal, which shall be heard and decided by the majority vote of the Commission at the next duly called meeting more than fourteen {14) days from the date of filing the notice of appeal. Temporary Variances are not otherwise subject to appeal.
(2) Permanent Variance. A patient, caregiver, applicant or licensee may file a motion for a permanent variance from these Rules when, in the opinion of the requesting party, circumstances dictate that the requesting party must be permanently out of compliance with these Rules (the Commission cannot grant a variance of any type in conflict with the Act; a permanent variance may not issue to excuse the requesting party from the mandates of the Act.). Circumstances warranting a permanent variance must be extraordinary (e.g., that the permanent noncompliance requested by the requesting party is superior to compliance with the Rules in terms of economics, expedience, justice and overall benefit to the requesting party as well as any family members, employees, agents, or other members of the public). A motion for permanent variance must be filed electronically through the AMCC website and shall be reviewed and decided by a majority vote of the Commission at a the next duly called meeting of the Commission more than fourteen {14) days from the date of the motion's filing. A party aggrieved by the initial decision of the Commission may seek review by electronically filing an application for rehearing within fourteen (14) days from the date of the Commission's initial decision. The rehearing shall occur at the next duly called meeting of the Commission more than fourteen {14) days from the date of its filing. An application for rehearing should contain any argument (not to exceed 10 pages) and written materials (not to exceed 25 pages) that the aggrieved party wishes the Commission to consider; the requesting party may be asked to be present at the meeting to provide further information regarding its application and any extraordinary circumstances attending the request. Permanent variances are not otherwise subject to review. In the event a permanent variance is granted, the Commission should consider whether the Rules should be amended to allow others similarly situated the same opportunity as has been granted for the requesting party.

Notes

Ala. Admin. Code r. 538-X-1-.08
Adopted by Alabama Administrative Monthly Volume XL, Issue No. 11, August 31, 2022, eff. 10/15/2022.

Author: William H. Webster

Statutory Authority: Code of Ala. 1975, ยงยง 20-2A-22, as amended.

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