Alaska Administrative Code
Title 7 - Health and Social Services
Part 1 - Administration
Chapter 10 - Licensing, Certification, and Approvals
Article 3 - Barrier Crimes and Conditions; Background Checks
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

(d) In its review of a variance request, the variance review committee shall

(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

(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

(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

(n) The oversight division shall, in accordance with 7 AAC 10.945, immediately revoke a variance granted under this section if

(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.