Section 7.10.930. Request for a variance.

	(a)  Except for a crime or condition listed in (g) of this section, an entity or provider notified under 7 AAC 10.915(d) that a barrier crime or condition exists may request a variance under this subsection. The request must be submitted to the department office responsible for that entity's or provider's licensing, certification, approval, or finding of eligibility to receive payments. The request must be submitted no later than 30 days after the entity or provider receives notice under 7 AAC 10.915(d), or, if the individual who was the subject of the criminal history check submits a request for reconsideration as allowed under 7 AAC 10.915(d)(2)(C), no later than 30 days after the department issues its decision on reconsideration under 7 AAC 10.950(b)(3), 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 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, as applicable, of that individual's record of  
				(i) protective orders 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 10.955;  
			(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 10.955;  
			(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) 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 criminal and civil history, behavioral health problem, or domestic violence problem, and who 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 the entity or provider that submitted the request for a variance; nothing in this subparagraph precludes the entity or provider from submitting additional letters of recommendation;  
			(I) if the individual is an employee or volunteer, or a potential employee or volunteer, 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) for a request submitted under (k) of this section, in addition to the information and documentation required under (1) - (3) of this subsection, the request must 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) the following information, if applicable:  
				(i) evidence that the individual is licensed under AS 08,  or became licensed after the individual was convicted of the offense or was listed on the centralized registry;  
				(ii) evidence that the individual passed a criminal history check conducted by the department before February 9, 2007, but after the individual was convicted of the offense;  
				(iii) evidence that the individual was issued a variance by the department before February 9, 2007, but after the individual was convicted of the offense for which the variance was issued.  
	(b)  The department office responsible for the licensing, certification, approval, or finding of eligibility to receive payments for the entity or provider seeking a variance will review each request for a variance received by that office and will  
		(1) make a written recommendation to the variance 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 will consider information regarding the original charge in making its recommendation to the variance 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)  If the department granted a variance for an offense revealed in a fingerprint-based criminal history check conducted six or more years before February 9, 2007, and if the offense for which the variance was granted is not a permanent barrier under 7 AAC 10.905, the entity or provider must submit a new request for a variance, if allowed under this section, at the time of application for renewal of that entity's current license, certification, approval, or finding of eligibility to receive payments. Except as provided in (h) and (i) of this section, if the offense for which the department granted the variance is a permanent barrier under 7 AAC 10.905, the variance is void and the entity must terminate association with the individual in accordance with 7 AAC 10.960.  
	(e)  If the department granted a variance for a barrier condition described in 7 AAC 10.955 six or more years before February 9, 2007, the entity or provider must submit a new request for a variance at the time of application for renewal of that entity's current license, certification, approval, or finding of eligibility to receive payments.  
	(f)  The department will not grant a variance from the requirement in AS 47.05.310 for conducting a criminal history check for an individual who has regular contact with recipients of services. For any other individual subject to AS 47.05.300 - 47.05.390 and 7 AAC 10.900 - 7 AAC 10.990, an entity or provider may request a variance from the requirement to conduct a criminal history check by submitting a written request to the department office responsible for that entity's or provider's licensing, certification, approval, or finding of eligibility to receive payments. The request must be submitted on a form provided by the department and must include a comprehensive rationale for the request and demonstrate that the health, safety, and welfare of recipients of services will be adequately protected.  
	(g)  Except as provided in (h) - (k) of this section, the department will not grant a variance for a  
		(1) conviction for an offense that is a permanent barrier under 7 AAC 10.905; or  
		(2) crime or civil finding for which federal law prohibits certain approvals, or restricts payment of benefits, during the most stringent barrier period set by federal law for that crime or civil finding; for the purpose of this paragraph,  
			(A) "federal law" includes an offense described in  
				(i) 42 U.S.C. 670 - 679b (secs. 470 - 479A of the Social Security Act), revised as of August 21, 2006, and adopted by reference;  
				(ii) 42 U.S.C. 1320a-7(a) (sec. 1128(a) of the Social Security Act), revised as of August 21, 2006, and adopted by reference;  
				(iii) 45 C.F.R. 1356.30, revised as of October 1, 2005, and adopted by reference; and  
				(iv) another applicable federal statute or regulation; and  
			(B) the prohibition applies to all entities and providers subject to 7 AAC 10.900 - 7 AAC 10.990, regardless of whether the federal law is directly applicable to only one of those entities or providers.  
	(h)  Notwithstanding the prohibition in (g)(1) of this section, the department may grant a variance for an individual convicted of a permanent barrier crime listed in (i) of this section, if  
		(1) a behavioral health problem was a factor in the commission of the crime; and  
		(2) the individual  
			(A) is associated in a manner described in 7 AAC 10.900(b) with an entity that provides a treatment program to individuals with a behavioral health problem;  
			(B) has completed any treatment required by a court; and  
			(C) has demonstrated a sustained self-directed program of recovery for at least five years, as determined through the assessment of a mental health professional clinician or a substance abuse counselor with at least three years of experience; for purposes of this subparagraph,  
				(i) "mental health professional clinician" has the meaning given in 7 AAC 43.1990;  
				(ii) "substance abuse counselor" means a counselor providing services for a substance abuse treatment facility or program certified under 7 AAC 29; and  
				(iii) "recovery" includes, as applicable, absence of symptoms, stabilization in life domains, compliance with any medical orders, and abstinence from substance use.  
				(i)  For the purpose of (h) of this section, the department may grant a variance for the following permanent barrier crimes, including the attempt, solicitation, or conspiracy to commit any of the following crimes or to violate a law or ordinance of this or another jurisdiction with similar elements:  
		(1) AS 11.41.200 (Assault in the First Degree);  
		(2) AS 11.41.210 (Assault in the Second Degree);  
		(3) AS 11.41.220 (Assault in the Third Degree);  
		(4) AS 11.41.320 (Custodial Interference in the First Degree);  
		(5) AS 11.41.460 (Indecent Exposure in the Second Degree);  
		(6) AS 11.41.500 (Robbery in the First Degree);  
		(7) AS 11.41.510 (Robbery in the Second Degree);  
		(8) AS 11.41.520 (Extortion);  
		(9) AS 11.46.400 (Arson in the First Degree);  
		(10) AS 11.46.410 (Arson in the Second Degree).  
	(j)  Notwithstanding the prohibition in (g)(1) of this section, the department may grant a variance for an individual adjudicated as a delinquent for a permanent barrier crime under 7 AAC 10.905(b).  
	(k)  Notwithstanding the prohibition in (g)(1) of this section, the department may grant a variance for an individual convicted of a permanent barrier crime listed under 7 AAC 10.905. A request under this subsection is subject to the review criteria set out in 7 AAC 10.935(c)(10) and additional consideration under 7 AAC 10.935(e) by the director of the department office responsible for the licensing of, certification of, approval for, or finding of eligibility to receive payments for the entity or provider seeking the variance.  

Authorities

47.05.300;47.05.310;47.05.320;47.05.330;47.05.340;47.32.010;47.32.030

Notes

Reference

7 AAC 10.915
7 AAC 10.935
7 AAC 10.950
7 AAC 10.960
7 AAC 41.205
7 AAC 41.370
7 AAC 75.405

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

History

Eff. 2/9/2007, Register 181; am 10/17/2007, Register 184; am 2/13/2008, Register 185