Current through November 28, 2024
(a) A barrier crime
or condition is a criminal offense or civil finding that prohibits a provider
or an applicant from being approved under
7
AAC 10.900. The standards and prohibitions in this
section apply to an individual who seeks to be associated or to remain
associated in a manner described in
7
AAC 10.900(b) with a provider that is
subject to
AS
47.05.300 -
47.05.390 and
7
AAC 10.900 - 7 AAC 10.990.1, and
(1) has been charged with, convicted of,
found not guilty by reason of insanity for, or adjudicated as a delinquent for,
a crime listed in this section or a crime with similar elements in another
jurisdiction; or
(2) has been found
by a court or agency of this state or of another jurisdiction to have been
involved in a matter that the department determines would be inconsistent with
the standards for protection of the health, safety, and welfare of recipients
of care.
(b) Except as
otherwise provided in this section, the following are permanent barriers,
including the attempt, solicitation, or conspiracy to commit any of the
following crimes or to violate a law or ordinance of this state or of another
jurisdiction if that law or ordinance has similar elements to one or more of
the following crimes, except that the barrier time for an adjudication as a
minor for crimes under this subsection is limited to 10 years from the date of
the individual's majority:
(1) an
unclassified, a class A, or a class B felony under AS 11.41 (Offenses Against
the Person);
(2) a crime involving
domestic violence that is a felony under AS 11;
(3) a crime that is a felony and involves a
victim who was a child under 18 years of age at the time of the conduct,
including a crime involving a perpetrator who was a person responsible for the
child's welfare; in this paragraph, "person responsible for the child's
welfare" has the meaning given in
AS
47.17.290;
(4) a crime under
AS
11.41.220 (Assault in the Third
Degree);
(5) a crime under
AS
11.41.460 (Indecent Exposure in the Second
Degree);
(6) a crime under
AS
11.46.400 or
11.46.410 (Arson in the First or
Second Degree);
(7) a crime under
AS 11.51 (Offenses Against the Family and Vulnerable Adults) as follows:
(A)AS
11.51.100 (Endangering the Welfare of a Child
in the First Degree);
(B)AS
11.51.200 (Endangering the Welfare of a
Vulnerable Adult in the First Degree);
(C)AS
11.51.210 (Endangering the Welfare of a
Vulnerable Adult in the Second Degree);
(8) a crime under AS 11.56 (Offenses Against
Public Administration) as follows:
(A)AS
11.56.835 (Failure to Register as a Sex
Offender or Child Kidnapper in the First Degree);
(B)AS
11.56.840 (Failure to Register as a Sex
Offender or Child Kidnapper in the Second Degree);
(9) a crime under AS 11.61 (Offenses Against
Public Order) as follows:
(A)AS
11.61.123 (Indecent Viewing or
Photography);
(B)AS
11.61.125 (Distribution of Child
Pornography);
(10) a
crime under AS 11.66 (Offenses Against Public Health and Decency) as follows,
if the person induced or caused to engage in sex trafficking was under 18 years
of age at the time of the offense:
(A)AS
11.66.110 (Sex Trafficking in the First
Degree);
(B)AS
11.66.120 (Sex Trafficking in the Second
Degree);
(C)AS
11.66.130 (Sex Trafficking in the Third
Degree);
(11) any sex
offense, as defined in
AS
12.63.100, that is not already listed in this
subsection;
(c) The
following are 10-year 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) a crime under
AS
11.41.260 (Stalking in the First
Degree);
(2) a crime under AS 11.46
(Offenses Against Property) as follows:
(A)AS
11.46.120 (Theft in the First
Degree);
(B)AS
11.46.280 (Issuing a Bad Check), if the crime
is a class B felony;
(C)AS
11.46.285 (Fraudulent Use of an Access
Device), if the crime is a class B felony;
(D)AS
11.46.300 (Burglary in the First
Degree);
(E)AS
11.46.475 (Criminal Mischief in the First
Degree);
(F)AS
11.46.480 (Criminal Mischief in the Second
Degree);
(G)AS
11.46.500 (Forgery in the First
Degree);
(H)AS
11.46.565 (Criminal Impersonation in the
First Degree);
(I)AS
11.46.600 (Scheme to Defraud);
(J)AS
11.46.730 (Defrauding Creditors), if the
crime is a class B felony;
(3) a crime under
AS
11.56.807 (Terroristic Threatening in the
First Degree), if it is a crime involving domestic violence;
(4) a crime under AS 11.61 (Offenses Against
Public Order) as follows:
(A)AS
11.61.190 (Misconduct Involving Weapons in
the First Degree);
(B)AS
11.61.195 (Misconduct Involving Weapons in
the Second Degree);
(C)AS
11.61.240 (Criminal Possession of
Explosives), if the crime is a class A or B felony;
(5) a crime under
AS
11.66.110 (Promoting Prostitution in the
First Degree), if the person who was induced or caused to engage in
prostitution was 18 years of age or older at the time of the offense;
(6) a crime under
AS
11.71.010-11.71.030 (Misconduct Involving a
Controlled Substance in the First, Second, or Third Degree);
(7) a crime under
AS
11.73.030 (Delivery of an Imitation
Controlled Substance to a Minor);
(8) a class B felony under
AS
21.36.360 (Fraudulent or Criminal Insurance
Acts);
(9) a class C felony under
AS
28.35.030(n) (Operating a
Vehicle, Aircraft, or Watercraft While Under the Influence of an Alcoholic
Beverage, Inhalant, or Controlled Substance), if the individual has had two or
more convictions since January 1, 1996, and within the 10 years preceding the
date of the present offense, for operating a vehicle, aircraft, or watercraft
while under the influence of an alcoholic beverage, inhalant, or controlled
substance;
(10) a class C felony
under AS
28.35.032(p) (Refusal to
Submit to Chemical Test), if the individual has had two or more convictions
since January 1, 1996, and within the 10 years preceding the date of the
present offense, or if punishment under
AS
28.35.030(n) or
28.35.032(p) was
previously imposed within the last 10 years.
(11) a crime under
AS
47.05.210 (Medical Assistance
Fraud).
(d) The following
are five-year 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) a crime under AS 11.41 (Offenses Against
the Person) as follows:
(A)AS
11.41.230 (Assault in the Fourth
Degree);
(B)AS
11.41.250 (Reckless Endangerment);
(C)AS
11.41.270 (Stalking in the Second
Degree);
(D)AS
11.41.330 (Custodial Interference in the
Second Degree);
(E)AS
11.41.530 (Coercion);
(2) a class C felony under AS 11.46 (Offenses
Against Property);
(3) a crime
under AS 11.51 (Offenses Against Family and Vulnerable Adults) as follows:
(A)AS
11.51.110 (Endangering the Welfare of a Child
in the Second Degree);
(B)AS
11.51.120 (Criminal Nonsupport), if the crime
is a class C felony;
(C)AS
11.51.121 (Aiding the Nonpayment of Child
Support in the First Degree);
(D)AS
11.51.130 (Contributing to the Delinquency of
a Minor);
(4) a crime
under AS 11.56 (Offenses Against Public Administration) as follows:
(A)AS
11.56.765 (Failure to Report a Violent Crime
Committed Against a Child);
(B)AS
11.56.810 (Terroristic Threatening in the
Second Degree), if it is a crime involving domestic violence;
(C)AS
11.56.815 (Tampering With Public Records in
the First Degree);
(5) a
crime under AS 11.61 (Offenses Against Public Order) as follows:
(A)
AS
11.61.118 (Harassment in the First Degree);
(B)AS
11.61.130 (Misconduct Involving a
Corpse);
(C)AS
11.61.140 (Cruelty to Animals);
(D)AS
11.61.145 (Promoting an Exhibition of
Fighting Animals), if the crime is a class C felony;
(E)AS
11.61.200 (Misconduct Involving Weapons in
the Third Degree);
(F)AS
11.61.240 (Criminal Possession of
Explosives), if the crime is a class C felony;
(G)AS
11.61.250 (Unlawful Furnishing of
Explosives);
(6) a crime
under AS
11.66.120 (Promoting Prostitution in the
Second Degree), if the person who was induced or caused to engage in
prostitution was 18 years of age or older at the time of the offense;
(7) a crime under
AS
11.71.040(a)(1), (2), (5), (6), (7), (8), or
(10) (Misconduct Involving a Controlled
Substance in the Fourth Degree);
(8) a class C felony under AS 11.73
(Imitation Controlled Substances);
(9) a serious offense as defined in
AS
12.62.900, except for
(A) a serious offense included in (b) or (c)
of this section; and
(B) an offense
under AS
11.61.110 (Disorderly Conduct);
(10) a class C felony under
AS
21.36.360 (Fraudulent or Criminal Insurance
Acts);
(11) a felony under
AS
47.30.815 (Bad Faith Initiation of an
Involuntary Mental Commitment Proceeding).
(e) The following are three-year 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) a
crime under AS 11.46 (Offenses Against Property) as follows:
(A)AS
11.46.140 (Theft in the Third
Degree);
(B)AS
11.46.320 (Criminal Trespass in the First
Degree), if it is a crime involving domestic violence;
(C)AS
11.46.430 (Criminally Negligent Burning), if
it is a crime involving domestic violence;
(D)AS
11.46.484 (Criminal Mischief in the Fourth
Degree), if it is a crime involving domestic violence;
(E)AS
11.46.510 (Forgery in the Third
Degree);
(F)AS
11.46.710 (Deceptive Business Practices), if
the crime is a class A misdemeanor;
(2) a crime under
AS
11.51.120 (Criminal Nonsupport), if the crime
is a class A misdemeanor;
(3) a
crime under AS 11.56 (Offenses Against Public Administration) as follows:
(A)AS
11.56.740 (Violating a Protective Order), if
it is a crime involving domestic violence;
(B)AS
11.56.745 (Interfering With a Report of a
Crime Involving Domestic Violence);
(4) a crime under
AS
11.61.240 (Criminal Possession of
Explosives), if the crime is a class A misdemeanor.
(f) Except as otherwise provided in this
section, the following are conditions that are inconsistent with the standards
for protection of public health, safety, and welfare and constitute a 10-year
barrier:
(1) a criminal offense or civil
finding for which one or more of the following federal laws prohibit certain
approvals or restrict payment of benefits, during the most stringent barrier
time set by the federal law for that crime or civil finding, regardless of
whether the federal law is directly applicable to the applicant or provider:
(A)
42 U.S.C.
670 -
679c (secs. 470 - 479B of the
Social Security Act), dealing with federal payments for foster care and
adoption assistance, revised as of October 1, 2016, and adopted by reference;
(B)
42 U.S.C .
1320a-7(a) (sec. 1128(a) of the Social
Security Act), dealing with exclusion of certain individuals and entities from
participation in Medicare and state health care programs, revised as of October
1, 2016, and adopted by reference;
(C)
45 C.F.R.
1356.30 (Safety Requirements for Foster Care
and Adoptive Home Providers), revised as of October 1, 2015, and adopted by
reference;
(2)
placement on one or more of the following lists or registries, except that any
barrier time that results from placement and that is is more stringent than the
10-year barrier under this subsection continues to apply, unless the individual
requests removal from the list or registry from the agency that maintains it
and the agency grants the request:
(A) the
List of Excluded Individuals and Entities (LEIE) that the United States
Department of Health and Human Services, Office of Inspector General maintains
under 42 U.S.C.
1320a-7 and
1320c-5 (secs. 1128 and
1156 of the Social Security Act);
(B) the Alaska Medical Assistance Excluded
Provider List maintained under
AS
47.05.240 or a list or registry maintained
under a substantially similar law in another jurisdiction;
(C) the United States Department of Justice's
Dru Sjodin National Sex Offender Public Website (NSOPW) maintained under
42 U.S.C.
16920, the Alaska Sex Offender/Child
Kidnapper Registry that the Department of Public Safety maintains under
AS
18.65.087, or a list or registry maintained
under a substantially similar law in another jurisdiction;
(3) a barrier condition based upon a civil
finding relating to abuse, neglect, or exploitation of a child or vulnerable
adult under AS 47.10, AS 47.24, AS 47.32, or AS 47.62, for any case that did
not result in the termination of parental rights; however, if parental rights
were relinquished or terminated under AS 4 7 .10, the barrier is permanent
;
(4) a finding under
7
AAC 10.915(a) and (d).
(g) If an applicant does not pass
a background check as a result of a barrier crime or condition established in
this section, the applicant is prohibited from associating with a provider in
any manner described in
7
AAC 10.900(b). If eligible under
7
AAC 10.930, an applicant may request a variance under
7
AAC 10.935.
(h) If an individual is charged with a
barrier crime, that individual is barred from any contact with recipients of
care during the pendency of the charge, unless the department grants a variance
under 7 AAC 10.935. The crime charged
ceases to be a barrier under this section on the date that the
(1) individual is acquitted of that
crime;
(2) charge is dismissed;
or
(3) district attorney's office
decides not to prosecute the charge.
(i) Except as otherwise provided in this
section, a barrier time listed in this section begins to run from
(1) the date that an individual was charged
with or convicted of the crime, or the date of a final civil finding
establishing a barrier condition, whichever period ends at a later
date;
(2) if the individual is
subject to a judgment of a court related to sentencing, probation, or parole,
or to a final civil finding, the date for the barrier time listed in this
section or until the individual has fully complied with the conditions of the
sentencing, probation, parole, or final civil finding, whichever period is
longer; or
(3) for a finding under
AS
47.05.240, the date the person is
unconditionally discharged from the federal Office of Inspector General list
described in (f)(2)(A) of this section, unless the commissioner determines by
clear and convincing evidence that a shorter time period is appropriate .
(j) If an individual is
convicted of a lesser crime than was originally charged, the length of time an
individual is barred will be based upon the crime for which the individual was
convicted.
(k) If an applicant is
also subject to federal background check requirements, and the federal
standards, including standards related to civil findings, are more stringent
than those set out in this section, the federal standards apply.
(l) For the purpose of determining whether a
person is convicted of a single offense or of multiple offenses, the provisions
of AS
12.55.145(a)(1)(C)
apply.
(m) In this section,
(1) "charged with" means a person
(A) has been indicted by information or
presentment for an offense, or has been arrested and provided a uniform summons
and complaint for an offense; and
(B) is awaiting adjudication or dismissal of
the matter, or a decision by the district attorney's office not to
prosecute;
(2)
"convicted" or "conviction" means a judgment entered by a court of competent
jurisdiction in this state or another jurisdiction, either upon the entry of a
plea, or after a bench or jury trial; "convicted" or "conviction"
(A) includes a suspended imposition of
sentence, even if the conviction is formally set aside under
AS
12.55.085; and
(B) does not include an executive order of
clemency, or a record that has been expunged by order of a court.
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
