7 AAC 10.935 - Review of request for a variance
(a) The
commissioner will appoint three or more department employees, including a
chair, to serve as a variance review committee whose primary responsibility is
to evaluate variance requests submitted under
7
AAC 10.900-7 AAC
10.990. The commissioner will include at least one
employee from each oversight division. An employee who is substantively
involved in any recommendation made under
7
AAC 10.930(b) to the variance review
committee shall recuse oneself from participation in committee's review of the
variance request for which the employee made the recommendation. A director
making a recommendation under (h) of this section shall recuse oneself from
participation in the committee's review of the variance request for which the
director makes the recommendation.
(b) In reviewing a request for a variance,
the chair of the variance review committee shall determine whether a variance
is prohibited under
7
AAC 10.930. If a variance is prohibited, the chair of
the variance review committee, without involving the full variance review
committee, shall immediately send the commissioner a recommendation under (g)
of this section and clearly indicate the prohibition in the
recommendation.
(c) The chair of
the variance review committee shall initially evaluate a variance request
within 10 days after the oversight division determines a variance request to be
complete under
7
AAC 10.930(b). The initial evaluation
must include an initial assessment of the basis for the variance request and a
determination, using the standards that the full variance review committee
would use under (d) and (e) of this section, of how the variance if granted
would impact the health, safety, or welfare of any recipient of services
authorized or services paid in full or in part by the department. At the end of
the evaluation, the chair may
(1) without
involving the full variance review committee immediately send the commissioner
a recommendation under (g) of this section to grant the variance request;
or
(2) refer the matter to the full
variance review committee to evaluate the variance request as provided in this
section.
(d) In its
review of a variance request, the variance review committee shall
(1) consider the recommendations that the
oversight division made under
7
AAC 10.930(b);
(2) consider all material supplied with the
variance request and any other relevant information available to the
department;
(3) verify, if
applicable, that
(A) any conditions of parole
or probation were met;
(B) any
court-ordered restitution has been made, or payments are current;
(C) the individual is in compliance with any
treatment required by the court, or that any required treatment has been
successfully completed;
(D) if the
barrier crime or condition is related to financial exploitation, including
theft, fraud, and bribery, or involved another form of dishonesty, including
perjury and official misconduct, that the individual's duties make it unlikely
that exploitation or dishonesty could occur with regard to recipients of
services; and
(E) if the barrier
crime or condition is related to the abuse, neglect, or exploitation of a child
or vulnerable adult, that the individual's duties make it unlikely that abuse,
neglect, or exploitation could occur with regard to recipients of services;
and
(4) consider any
mitigating factors, including the amount of time that has elapsed since the
barrier crime or condition occurred and whether the individual has been
employed by a provider for a substantial period, has performed duties in a
responsible and trustworthy manner, and has not been the subject of any
complaint from a recipient of services or a representative of a recipient of
services.
(e) For a
request for a variance for a permanent barrier crime or condition, in addition
to the matters described in (d)(1) - (4) of this section the variance review
committee shall consider
(1) whether
mitigating circumstances were involved at the time that the barrier crime or
condition occurred;
(2) the
individual's educational and employment history;
(3) any current letters of recommendation
from employers or others submitted in addition to the minimum required under
7
AAC 10.930(a)(3)(H); and
(4) whether the individual was previously
issued a variance by the department after the occurrence of the barrier crime
or condition for which the variance was issued.
(f) Before issuing a decision, the
commissioner or the variance review committee may require the individual for
whom a variance is sought to appear in person or by telephone for an
interview.
(g) Except as provided
in (h) of this section, and within 30 days after the oversight division
determines a variance request to be complete under
7
AAC 10.930(b), the variance review
committee shall recommend to the commissioner that it has determined that the
health, safety, and welfare of recipients
(1)
will be adequately protected, and the variance review committee shall recommend
that the commissioner grant the variance request; or
(2) will not be adequately protected, and the
variance review committee shall recommend that the commissioner deny the
variance request.
(h)
For a variance request submitted for a permanent barrier crime or condition
under 7 AAC 10.900 -
7
AAC 10.990, and within 20 days after the oversight
division determines a variance request to be complete under
7
AAC 10.930(b), the variance review
committee shall submit to the director of the oversight division the
recommendation to grant or deny the variance request under (g)(1) or (2) of
this section with respect to the health, safety, and welfare of recipients.
Within 30 days after the oversight division determines a variance request to be
complete under
7
AAC 10.930(b), the director shall
consider the committee's recommendation and make a written recommendation that
the commissioner grant or deny the variance request.
(i) The commissioner will consider a
recommendation made under (b), (c), (g), or (h) of this section and will issue
a decision on the variance request within 30 days after receiving the
recommendation. If the commissioner determines that the variance request does
not provide enough information for the commissioner to make a determination,
the commissioner may refer the matter back for a review by the full variance
review committee. During any point in the process, the commissioner may seek
additional information from the variance review committee or from the provider
or applicant who requested the variance.
(j) The commissioner will inform the provider
or applicant in writing of the commissioner's decision to grant or deny, with
or without terms and conditions, a variance request. In the decision the
commissioner will include the specific reasons for the denial and will advise
that if the provider or applicant believes that the decision was made in error
or that there was an error in the information the department relied on, or if
the provider or applicant has new or additional factual information that could
change the decision, the provider or applicant may request reconsideration of
the variance decision under
7
AAC 10.950. A copy of the commissioner's decision to
grant or deny the request for a variance will be provided to the department
office responsible for conducting background checks and to the oversight
division.
(k) In a variance granted
under this section, the department will not identify the individual for whom
the variance was requested, but will specify the barrier crime or condition for
which the variance was granted. The department will set out the terms and
conditions of the variance, and will include in the notification an expiration
date, as applicable. For an applicant, the department will include in the
notification a reference to the provisions of (m) of this section.
(l) Unless the variance is a nontransferable
variance issued under
7
AAC 10.930(f), a variance maybe
transferred with the approval of the department to another provider, except
that a variance issued for employment or volunteering in a behavioral health
services provider to which
7
AAC 70.010(a) applies may be
transferred with the approval of the department only to another behavioral
health services provider to which
7
AAC 70.010(a) applies. The new
provider shall ensure that any conditions of the variance are
followed.
(m) A variance becomes
immediately invalid without prior notice if the individual for whom the
variance was granted
(1) ceases to be
associated with a provider that requested the variance; or
(2) fails to become associated with a
provider within 100 days after ceasing to be associated with a provider or
receiving the notification under (j) and (k) of this section if the individual
is an applicant described in
7
AAC 10.902.
(n) The oversight division shall, in
accordance with
7
AAC 10.945, immediately revoke a variance granted
under this section if
(1) the oversight
division determines that the variance was granted based on false information
provided by the individual to whom the variance applies or by a provider that
requested the variance; or
(2) the
individual to whom the variance applies
(A)
violates a term or condition of the variance; or
(B) subsequently becomes subject to
AS
47.05.310(c), is charged
with, convicted of, found not guilty by reason of insanity for, or adjudicated
as a delinquent for, a crime listed in
7
AAC 10.905 or a similar crime in another jurisdiction,
or is issued a civil finding governing a barrier condition.
(o) A variance granted
under this section remains valid unless made invalid under (m) of this section
or revoked under (n) of this section.
(p) A variance granted under this section
does not exempt the applicant from
7
AAC 10.910(c).
(q) In this section, "commissioner" means the
commissioner or the commissioner's designee substantively uninvolved in a
recommendation made under
7
AAC 10.930(b) or this
section.
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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