7 Alaska Admin. Code § 10.930 : Health and Social Services — Administration — Licensing, Certification, and Approvals — Barrier Crimes and Conditions; Background Checks — 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);

(C) 45 C.F.R. 1356.30, adopted by reference in 7 AAC 10.905(f); and

(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.

7 AAC 10.930

Eff. 2/9/2007, Register 181; am 10/17/2007, Register 184; am 2/13/2008, Register 185; am 6/29/2017,Register 222, July 2017

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