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Article 2
Reserved

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Article 3
Barrier Crimes and Conditions; Background Checks

Section

900. Purpose and applicability; exceptions.

902. Request for a background check.

903. Limited disclosure of background check and variance review committee information.

905. Barrier crimes and conditions.

910. Request for background check.

915. Background check.

920. Provisional valid background check.

925. Monitoring and notification requirements.

927. Request for a redetermination.

930. Request for a variance.

935. Review of request for a variance.

940. Posting of variance decision required.

945. Revocation of valid background check or variance.

950. Request for reconsideration of a variance request decision or revocation.

955. (Repealed).

960. Termination of association.

990. Definitions.

7 AAC 10.900. Purpose and applicability; exceptions

(a) The purpose of 7 AAC 10.900 - 7 AAC 10.990 is to establish standards, requirements, and procedures dealing with barrier crimes and conditions and with background checks, including

(1) the identification of barrier crimes and conditions that would bar an individual from

(A) licensure, certification, or approval by the department;

(B) a finding of eligibility to receive certain payments from the department; and

(C) association with a provider in a manner described in (b) of this section;

(2) requirements for requesting a background check and procedures to determine whether a barrier crime or condition exists; and

(3) requirements for maintaining compliance with AS 47.05.300 - 47.05.390, AS 47.32, and 7 AAC 10.900 - 7 AAC 10.990, including standards for association and requirements for continued monitoring and notification

(b) The provisions of 7 AAC 10.900 - 7 AAC 10.990 apply to a provider seeking approval from an oversight division to provide services or receive payments from the department. Each individual who is to be associated with a provider in a manner described in this subsection must have a valid background check conducted under 7 AAC 10.900 - 7 AAC 10.990 if that individual is 16 years of age or older and will be associated with the provider as

(1) an administrator or operator;

(2) an individual service provider;

(3) an employee, an independent contractor, an apprentice, an unsupervised volunteer, or a board member if that individual has

(A) regular contact with recipients of services;

(B) access to personal or financial records maintained by the provider regarding recipients of services, including access to

(i) personal identifying information, financial information, treatment information, or medical records; and

(ii) a recipient's money or other property in any manner that could result in misappropriation of that money or property; or

(C) control over or impact on the financial well-being of recipients of services, unless the only recipient whose financial well-being is affected is a

(i) relative of the individual who has authorized that individual to make financial decisions for that relative;

(ii) recipient who has executed a power of attorney for that individual to make financial decisions for that recipient; or

(iii) recipient for whom a court has authorized that individual to make financial decisions for that recipient;

(4) an officer, a director, a partner, a member, or a principal of the business organization that owns an entity, if that individual has

(A) regular contact with recipients of services;

(B) access to personal or financial records maintained by the provider regarding recipients of services, including access to

(i) personal identifying information, financial information, treatment information, or medical records; and

(ii) a recipient's money or other property in any manner that could result in misappropriation of that money or property; or

(C) control over or impact on the financial well-being of recipients of services, unless the only recipient whose financial well-being is affected is a

(i) relative of the individual who has authorized that individual to make financial decisions for that relative;

(ii) recipient who has executed a power of attorney for that individual to make financial decisions for that recipient; or

(iii) recipient for whom a court has authorized that individual to make financial decisions for that recipient;

(5) except as provided in (c) and (d)(9) of this section, an individual who resides in a part of an entity, including a residence if services are provided in the residence, if the individual remains, or intends to remain, in the entity or residence for 45 days or more, in total, in a 12-month period; or

(6) except as provided in (c) and (d) of this section, any other individual who

(A) is present in the entity, including in a residence if services are provided in the residence; and

(B) would have regular contact with recipients of services.

(c) A background check under 7 AAC 10.900 - 7 AAC 10.990 is not required for a recipient of services, unless that recipient is also associated with the provider in any manner described in (b)(1) - (4) of this section.

(d) A background check under 7 AAC 10.900 - 7 AAC 10.990 is not required for the following individuals, if supervised access is provided in accordance with (e) of this section:

(1) a relative of a recipient of services, unless that relative is also associated with the provider in any manner described in (b)(1) - (5) of this section;

(2) a visitor of a recipient of services, unless that visitor is also associated with the provider in any manner described in (b)(1) - (4) of this section;

(3) an individual for whom the provider submits evidence to the department of a fingerprint-based criminal history check conducted and implemented under a process that meets or exceeds the standards of 7 AAC 10.900 - 7 AAC 10.990;

(4) a person listed in (A) or (B) of this paragraph, as follows, if that person is not associated with the provider in any manner described in (b)(1) - (4) of this section;

(A) an employee, an independent contractor, an apprentice, or an unsupervised volunteer;

(B) a board member, an officer, a director, a partner, a member, or a principal of the business organization that owns an entity;

(5) a personal physician, an infant learning teacher, an attendant for a child with special needs as described in 7 AAC 57.940, a licensor, a fire marshal, a food services sponsor, or another similar individual who

(A) is not associated with the provider in any manner described in (b) of this section; and

(B) provides support services to the provider, or to a recipient of services;

(6) an individual who is a vendor or an industry representative, or who provides delivery, installation, maintenance, or repair services;

(7) an individual who resides in any part of an entity, including a residence if services are provided in the residence, if the individual remains in the entity or residence for less than 45 days, in total, in a 12-month period;

(8) a parent's designee to drop off and pick up a child in care, unless the designee is also associated in a manner described in (b) of this section with the provider of child care;

(9) a parent who receives money from the department for purposes of paying an approved in-home child care caregiver under 7 AAC 41.370, and any other individual who resides in that parent's household; however, the exemption in this paragraph does not apply to an approved in-home child care caregiver who resides in the household;

(10) an occasional guest of the administrator or operator of a provider.

(e) A provider must provide supervised access for an individual exempted under (d) of this section if the individual is present in the entity during hours of operation. Supervised access is not required in a residence where in-home child care is provided under 7 AAC 41.370.

(f) For purposes of (b)(5) and (d)(7) of this section, "individual who resides in any part of an entity" means an individual who dwells continuously in, or legally occupies, the premises housing the provider, as evidenced by

(1) the individual's address on the individual's permanent fund dividend received under AS 43.23, driver's license, fishing or hunting license, or other official record; or

(2) observation by another individual of the individual occupying the premises.

History: Eff. 2/9/2007, Register 181; am 6/29/2017, Register 222

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

7 AAC 10.902. Request for a background check

An applicant may request a background check under 7 AAC 10.900 - 7 AAC 10.990 to comply with 7 AAC 10.900(a) (1).

History: Eff. 6/29/2017, Register 222

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

7 AAC 10.903. Limited disclosure of background check and variance review committee information.

(a) The department, including the variance review committee appointed under 7 AAC 10.935, will limit the use of information gathered during the background check process under 7 AAC 10.900 - 7 AAC 10.990 as stated in this section.

(b) The department will not disclose information obtained by a representative, agent, volunteer, or employee of the department in the course of discharging the background check process under 7 AAC 10.900 - 7 AAC 10.990, or in the course of discharging the responsibilities of the variance review committee, to anyone outside the department, except as authorized by state or federal law governing the program or program review or audit to which the information relates.

(c) Unless otherwise authorized by law, the department will not use or disclose protected health information except as required or permitted by 42 C.F.R. Part 2 (Confidentiality of Alcohol and Drug Abuse Patient Records), 45 C.F.R. Part 160, Subpart C (Compliance and Investigations), and 45 C.F.R. Part 164, Subpart E (Privacy of Individually Identifiable Health Information), each as revised as of October 1, 2016, and adopted by reference.

History: Eff. 6/29/2017, Register 222

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

7 AAC 10.905. Barrier crimes and conditions

(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 10.990. 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, 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 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 47.10, 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.

History: Eff. 2/9/2007, Register 181; am 6/29/2017, Register 222

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

7 AAC 10.910. Request for background check

(a) A provider must request a background check under this section, or provide proof of a valid fingerprint-based background check, for each individual to be associated with the provider in any manner described in 7 AAC 10.900(b) . A provider must request a background check

(1) when the provider submits an initial application for a license, certification, approval, or finding of eligibility to receive payments from the department;

(2) for a new owner, officer, director, partner, member, or principal of the business organization if there is a change in ownership of the business organization, or if an officer, director, partner, member, or principal of the business organization is replaced; the background check must be completed before the individual begins association unless the department issues notice of a provisional valid background check under 7 AAC 10.920;

(3) except as provided otherwise in this section, if the provider wishes to appoint a board member or to hire or retain an employee, an independent contractor, an apprentice, or an unsupervised volunteer described in 7 AAC 10.900(b) (3); the background check must be completed before appointment or hiring unless the department issues notice of a provisional valid background check under 7 AAC 10.920;

(4) for an individual 16 years of age or older who is not a recipient of services, and who wishes to reside in the entity or to be present as described in 7 AAC 10.900(b) (5) or (6); the background check must be completed before the individual begins association unless

(A) the department issues notice of a provisional valid background check under 7 AAC 10.920; or

(B) the individual is residing in the entity before that individual's 16th birthday; for an individual described in this subparagraph, the provider must submit the information required under (b) of this section within 30 days after the individual's 16th birthday; or

(5) at any time requested by the department

(A) to show compliance with 7 AAC 10.900 - 7 AAC 10.990 during inspection, monitoring, or investigation; or

(B) for an individual if the department has good cause to believe that the individual's background has changed.

(b) The applicant or provider must submit the following with each request for a background check:

(1) confirmation that a current release of information authorization, on a form provided by the department and signed by the individual for whom the request is submitted, is on file with the provider;

(2) confirmation that an authorization, on a form provided by the department, signed by the individual for whom the request is submitted, and permitting the department to mark the individual's name in the Alaska Public Safety Information Network (APSIN) under 7 AAC 10.915(e) , is on file with the provider;

(3) one set of fingerprints for the individual for whom the request is submitted;

(4) the fees required by the Department of Public Safety under 13 AAC 68.900(a) (2)(B) and (5);

(5) an additional $25 application fee; the department will waive this fee for an unpaid volunteer who provides services to a provider that is operated by the state or recognized by the United States Internal Revenue Service as a nonprofit entity under 26 U.S.C. 50l(c)(3).

(c) Unless a more frequent fingerprint-based background check is required under federal law, a fingerprint-based background check is valid for five years from the date the check became valid under (h) of this section for an individual

(1) whose name has been marked in APSIN on a continuous basis;

(2) who has not had the background check revoked under 7 AAC 10.945, made invalid under 7 AAC 10.915(g) , or rescinded under 7 AAC 10.915(h) ;

(3) who has not had a variance approval made invalid under 7 AAC 10.935(m) or revoked under 7 AAC 10.935(n) ; and

(4) who

(A) remains associated with a provider in a manner described in 7 AAC 10.900(b) , subject to verification under (d) of this section;

(B) becomes re-associated with the same provider in a manner described in 7 AAC 10.900(b) within 100 days after terminating association with that provider, subject to verification under (d) of this section; or

(C) becomes associated with another provider in a manner described in 7 AAC 10.900(b) within 100 days after terminating association with a previous provider, subject to verification under (d) of this section.

(d) At the time of association or re-association under (c) of this section, and annually after that date, each provider must verify that each applicant described in (c)(4)(A), (B), or (C) of this section, as applicable, has a valid background check. If the department determines that the background check is not valid, the department will notify the provider that a request for a new background check must be submitted under this section, subject to any applicable fee. Each provider, and each applicant described in 7 AAC 10.902, is responsible for ensuring that a background check is renewed before it expires under (c) of this section for each applicant described in (c)(4)(A), (B), or (C) of this section.

(e) Repealed 6/29/2017;

(f) Repealed 6/29/2017;

(g) A willful misrepresentation of an individual's background history by a provider or an applicant is cause for immediate denial of a request for a background check, or revocation of a valid background check.

(h) A valid background check means that, within any applicable period referred to in this section,

(1) the items listed under (b) of this section were submitted to the department;

(2) the department determined that a barrier crime or condition did not exist;

(3) the applicant's name has been marked in APSIN on a continuous basis and the applicant has not had

(A) the background check revoked under 7 AAC 10.945, made invalid under 7 AAC 10.915(g) , or rescinded under 7 AAC 10.915(h) ; or

(B) a variance approval made invalid under 7 AAC 10.935(m) or revoked under 7 AAC 10.935(n) ; and

(4) if applicable, any variance granted under 7 AAC 10.935 is still in effect and authorized by the department.

(i) Nothing in this section precludes a provider from requiring

(1) an individual who is subject to a background check under 7 AAC 10.900 - 7 AAC 10.990 to pay a cost involved in the submittal of a request under this section; the provisions of this paragraph do not apply to a foster home; or

(2) a background check for an individual who is not otherwise subject to 7 AAC 10.900 - 7 AAC 10.990.

(j) If a provider required to request or obtain a valid background check required under 7 AAC 10.900 - 7 AAC 10.990 does not request or obtain the required background check, that provider is disqualified, until the time a valid background check is obtained, from

(1) applying for licensure, certification, or approval to be a provider;

(2) receiving any payment from the department; or

(3) associating with another provider in any manner described in 7 AAC 10.900(b) .

(k) For purposes of this section, an individual's name is marked in APSIN on a continuous basis if an individual's APSIN record has been electronically associated with the department's background check program to ensure that any new criminal history is relayed to the department on a real-time basis.

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