7 AAC 10.930 - Request for a variance
(a) Except for a crime or condition listed in
(g) of this section, if a provider or an applicant is notified under
7
AAC 10.915(d) or
7
AAC 10.927(c) that a barrier crime or
condition exists under
7
AAC 10.900 -
7
AAC 10.990. the provider or the applicant may request
a variance under this section. The request must be submitted to the provider's
oversight division. The request must be submitted no later than 90 days after
the department issues notification under
7
AAC 10.915(d) that a barrier crime or
condition exists or the department issues a notice of decision under
7
AAC 10.927(c) denying a request for a
redetermination, whichever date is later. The request must be submitted on a
form provided by the department, and must include the following:
(1) a comprehensive rationale for granting a
variance;
(2) a demonstration of
how the health, safety, and welfare of recipients of services will be
adequately protected;
(3) copies of
all known and available information relevant to determining whether the health,
safety, and welfare of recipients of services are adequately protected,
including the following information regarding the individual for whom a
variance is sought:
(A) a copy of that
individual's record of, or if a record is inapplicable, a statement that the
individual has no record of
(i) any
protective order issued or filed under AS 18.66 (Domestic Violence and Sexual
Assault) or a substantially similar law or ordinance of another
jurisdiction;
(ii)
conviction;
(iii) indictment or
presentment, or of charging by information or complaint;
(iv) having been charged with a crime,
without subsequent conviction;
(v)
having been charged with a crime that was reduced to a lesser charge;
(vi) having been charged with a crime for
which a suspended imposition of sentence was granted by the court;
and
(vii) any circumstance that led
to a barrier condition under
7
AAC 10.915;
(B) if the individual was incarcerated,
(i) a copy of the order from the local,
state, or federal jurisdiction that released the individual from
incarceration;
(ii) the date of
release from incarceration; and
(iii) any terms and conditions of
parole;
(C) if the
individual was sentenced and, as a part of that sentence, the individual was
placed on supervised or unsupervised probation, a copy of the terms and
conditions of probation;
(D) the
extent, nature, and seriousness of the following:
(i) the individual's offense and past
criminal record;
(ii) a behavioral
health problem if it exists;
(iii)
a domestic violence problem if it exists;
(iv) any circumstance that led to a barrier
condition under
7
AAC 10.915;
(E) the age of the individual at the time of
the offense, problem, or circumstance;
(F) the amount of time that has elapsed since
the most recent offense, problem, or circumstance;
(G) evidence of rehabilitation, prevention,
or treatment efforts;
(H) any other
evidence of the individual's present fitness, including at least two letters of
recommendation from credible persons who are aware of the individual's
background history, behavioral health problem, or domestic violence problem,
and who would, despite that knowledge, recommend that a variance be granted;
any letters must be from persons who are unrelated to the individual for whom
the variance is requested and who are not associated with a provider who
submitted the request for a variance; nothing in this subparagraph precludes
the provider or an applicant from submitting additional letters of
recommendation;
(I) information
related to job responsibilities that would be performed, hours and days of
service, whether the individual would be in contact with recipients of
services, and plans for supervision, including whether the individual would be
subject to direct supervision while on the premises during hours of
operation;
(4) a
statement from the individual requesting a variance that describes all actions
that the individual has taken to reduce the risk of reoffending, including
proof of active participation in or completion of any treatment program
required by a court; the statement must also include
(A) a detailed description of any mitigating
circumstances that were involved at the time of the offense;
(B) a description of the individual's
educational and employment history; and
(C) evidence that the individual is licensed
under AS 08, or became licensed after the individual was convicted of the
offense or after the department under
7
AAC 10.915 determined a barrier condition to
exist.
(b)
The oversight division shall review each request for a variance and shall,
within 30 days after receipt of the variance request, determine if the variance
request is complete. If the variance request is incomplete, the department will
notify the provider or applicant and identify the material needed to complete
the variance request. In the notification the department will include a
statement of the material that is missing and that the missing material must be
submitted to the department within 30 days after the date of the notification,
or the variance request will be denied. If after the deadline for submittal of
the missing material the variance request remains incomplete, the oversight
division shall deny the variance request and advise the provider or applicant
of the right to reapply for a variance. If the oversight division determines
that the variance request is complete, the oversight division shall
(1) make a written recommendation to the
variance review committee appointed under
7
AAC 10.935 to grant or deny the request;
(2) include the reasons for the
recommendation; and
(3) recommend
any conditions that should be placed on any variance issued.
(c) If the individual was
convicted of a lesser charge, in the department's review under (b) of this
section, the department may consider information regarding the original charge
in making its recommendation to the variance review committee, including
whether the original charge was a permanent barrier crime or condition for
which a variance would be prohibited under (g) of this section.
(d) Repealed 6/29/2017.
(e) Repealed 6/29/2017.
(f) The department may grant a variance under
AS
47.05.310(f) from all or
part of the requirements for conducting a background check under
7
AAC 10.900 -
7
AAC 10.990 if a provider submits a request for a
variance to the oversight division on a form provided by the department,
includes a comprehensive rationale for the request, and demonstrates that the
health, safety, and welfare of recipients of services will be adequately
protected. A variance issued under this subsection may not be transferred to
another provider.
(g) The
department will not grant a variance for a crime or civil finding for which
federal law prohibits certain approvals, or restricts payment of benefits,
during the most stringent barrier time set by federal law for that crime or
civil finding. For purposes of this subsection,
(1) "federal law" includes an offense
described in
(A)
42 U.S.C.
670 -
679c (secs. 470 - 479B of the
Social Security Act), adopted by reference in 7 AAC 10.90500;
(B)
42 U.S.C.
1320a-7(a) (sec. 1128(a) of the Social
Security Act), adopted by reference in
7
AAC 10.905(f);
(D) another applicable federal statute or
regulation;
(2) the
prohibition applies to all providers subject to
7
AAC 10.900 -
7
AAC 10.990, regardless of whether the federal law is
directly applicable to only one of the providers; and
(3) for an applicant who has requested a
variance under
7
AAC 10.900 -
7
AAC 10.990, the prohibition applies regardless of
whether the federal law is directly applicable to the provider with which the
applicant seeks to become associated.
(h) Repealed 6/29/2017.
(i) Repealed 6/29/2017.
(j) Repealed 6/29/2017.
(k) Repealed 6/29/2017.
Notes
Authority:AS 47.05.300
AS 47.05.310
AS 47.05.320
AS 47.05.330
AS 47.05.340
AS 47.32.010
AS 47.32.030
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