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

7 AAC 10.935

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