1. (a) The purpose of this section is to provide a process for determining whether a general variance for a provider described in 7 AAC 41.200(a)(5) or (6), if requested, should be granted for a requirement of 7 AAC 41.200 - 7 AAC 41.260 or 7 AAC 41.370.

2. (b) A provider described in 7 AAC 41.200(a)(5) or (6) shall meet the requirements of this section. The department may grant a general variance if

   1. (1) an alternative means, acceptable to the department, satisfies the purpose of the requirement for which the variance is sought; and
   2. (2) the health, safety, and welfare of recipients of services are protected.

3. (c) A provider described in 7 AAC 41.200(a)(5) or (6) seeking a general variance under this section must submit to the department or designee, on a form supplied by the department, a request for a general variance as required by this section. A request must contain the following:

   1. (1) the requirement from which the variance is sought;
   2. (2) the reasons why the provider is unable to comply with the requirement, a description of how the provider is not in compliance, and the extent to which compliance with the requirement will impose any substantial economic, technological, programmatic, legal, or medical hardship on the provider or recipients of services;
   3. (3) the period of time for which the variance is requested;
   4. (4) the proposed alternative means of satisfying the purpose of the requirement for which the variance is sought;
   5. (5) a statement as to how the health, safety, and welfare of recipients of services will be protected during the period of the variance;
   6. (6) the plan for achieving compliance before the variance expires;
   7. (7) assurance that the conditions at the child care premises do not present an imminent danger to the health, safety, or welfare of recipients of services;
   8. (8) if the request for a variance involves fire safety or another state or municipal requirement, evidence that the request has been reviewed by the appropriate authority; and
   9. (9) any additional information requested by the department or designee to determine the effect of a variance on the health, safety, and welfare of recipients of services.

4. (d) The department will or designee shall evaluate a request for a general variance by

   1. (1) investigating the statements in the request form;
   2. (2) a department inspection of, or the designee requesting the department to inspect, the child care premises, if appropriate;

   3. (3) taking one or both of the following actions:

      1. (A) conferring with the applicant regarding the request;
      2. (B) discussing the request with the parents of affected recipients of services, as appropriate, to determine whether the parents support granting the variance.

5. (e) If a designee does the evaluation under (d) of this section, the designee shall submit a recommendation to the department for the department's review. The department's decision to grant or deny a request for a general variance will be issued in writing and will be delivered to the provider who made the request. The department may grant a general variance for

   1. (1) a period that does not exceed one year, if the department determines that the provider

      1. (A) is unable to comply with the requirement from which the variance is sought;
      2. (B) has an effective plan for achieving compliance during the term of the variance; and
      3. (C) is able to adequately provide for the health, safety, and welfare of recipients of services during the term of the variance; or

   2. (2) a longer period than allowed under (1) of this subsection if the department determines

      1. (A) that

         1. (i) strict compliance with the requirement from which the variance is sought cannot be accomplished without a substantial economic, technological, programmatic, legal, or medical hardship; or
         2. (ii) the variance will maintain or improve the quality of services for recipients of services; and
      2. (B) that the provider has an effective plan for meeting the goal of the requirement from which the variance is sought, and that the plan adequately protects the health, safety, and welfare of recipients of services and otherwise meets all applicable statutory or regulatory standards.
6. (f) A decision to grant a request for a general variance will identify the statutory or regulatory requirement involved by section number and subject matter and state the duration, terms, and conditions of the variance, including the steps the provider must take to achieve compliance before the variance expires.
7. (g) A decision to deny a request for a general variance will be in writing and will state the reasons for the denial. The provider may reapply for a variance, addressing the department's stated reasons for the denial or may request reconsideration under (k) of this section.
8. (h) If a provider violates a condition of a general variance granted under this section, the department will send written notice to the provider that the variance is revoked. The notice will advise that the provider may request reconsideration under (k) of this section.
9. (i) If the department grants a request for a general variance, the provider shall maintain a copy with their records, notify parents of children in care, and make it available to any person who wishes to review it. A general variance remains in effect for the duration stated, unless the department revokes the variance under (j) of this section.
10. (j) The department will revoke a general variance if the department finds that the provider is not following its plan for achieving compliance, or is no longer able to adequately provide for the health, safety, and welfare of recipients of services during the term of the variance. If the department decides to revoke a variance, it will provide written notice of revocation to the provider, setting out the reasons for the department's decision. The department will advise the provider of its right to request reconsideration under (k) of this section. A notice of revocation issued under this subsection is effective 30 days after the department issues the notice unless a request for reconsideration is submitted. Nothing in this subsection precludes the department from issuing a notice of immediate revocation if the department finds that the life, health, safety, or welfare of recipients of services is threatened.

11. (k) If the department denies or revokes a variance the provider may submit a written request to the department for reconsideration of that decision. A request under this subsection must be submitted within 30 days after the department issues the denial or notice of revocation, and must include

    1. (1) the requestor's name, mailing address, telephone number, and, if available, electronic mail address and facsimile number;
    2. (2) a summary of the department's decision to be reviewed; and

    3. (3) a clear and concise statement of the reason for the request, including

       1. (A) a statement of the nature and scope of the requestor's interests, and an explanation of how and to what extent those interests would be directly and adversely affected by the decision;
       2. (B) the contested terms and conditions of the department's decision, and proposed alternatives; and
       3. (C) copies of any documents or data that would assist the department in its review.
12. (l) After reviewing a request for reconsideration, the department will notify the provider in writing within 30 days after receiving the request, and will state the reasons for the department's final decision.

(Eff. 1/5/2017, Register 221)

Authority: AS 47.25.001