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7 AAC 10.9500. Purpose and applicability

(a) Except as provided in (b)(2) and (3) of this section, the purpose of 7 AAC 10.9500 - 7 AAC 10.9535 is to provide a process for determining whether a general variance, if requested, should be granted for a requirement of

(1) AS 47.32;

(2) this chapter; or

(3) another regulation applicable to an entity referred to in 7 AAC 10.015.

(b) The provisions of 7 AAC 10.9500 - 7 AAC 10.9535

(1) apply to the entities referred to in 7 AAC 10.015;

(2) do not apply to a temporary variance to admit a child for care in an assisted living home under 7 AAC 75.415; and

(3) do not apply to a request for a variance from a provision of 7 AAC 10.900 - 7 AAC 10.990 (barrier crimes and conditions; background checks), 7 AAC 41.205 (child protection and background check requirements), or 7 AAC 57.315 (child protection and background check requirements).

History: Eff. 6/23/2006, Register 178; am 12/3/2006, Register 180; am 2/9/2007, Register 181; am 6/29/2017, Register 222

Authority: AS 18.05.010

AS 18.05.040

AS 44.29.020

AS 47.14.120

AS 47.32.010

AS 47.32.020

AS 47.32.030

AS 47.32.130

AS 47.32.140

7 AAC 10.9505. General variance

(a) Subject to 7 AAC 10.9500(b) (2) and (3), and (b) of this section, the department may grant a general variance if

(1) the applicable requirements of 7 AAC 10.9500 - 7 AAC 10.9515 are met;

(2) an alternative means, acceptable to the department, satisfies the purpose of the requirement for which the variance is sought; and

(3) the health, safety, and welfare of recipients of services are protected.

(b) The department may grant an assisted living home a general variance from a requirement of AS 47.32, 7 AAC 75, or this chapter to allow the home to

(1) meet the goals of AS 47.32, 7 AAC 75, and this chapter in a way that differs from the methods set out in AS 47.32, 7 AAC 75, or this chapter;

(2) promote aging in place to minimize the need for a resident to move from the home; or

(3) integrate mentally, developmentally, and physically disabled residents into the community to reach their highest level of functioning.

History: Eff. 6/23/2006, Register 178

Authority: AS 18.05.010

AS 18.05.040

AS 44.29.020

AS 47.14.120

AS 47.32.010

AS 47.32.030

AS 47.32.130

AS 47.32.140

7 AAC 10.9510. Request for a general variance

An entity seeking a general variance under 7 AAC 10.9500 - 7 AAC 10.9535 must submit to the department, 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) the requirement from which the variance is sought;

(2) the reasons why the entity is unable to comply with the requirement, a description of how the entity 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 entity or recipients of services;

(3) the period of time for which the variance is requested;

(4) the proposed alternative means of satisfying the purpose of the requirement for which the variance is sought;

(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) the plan for achieving compliance before the variance expires;

(7) assurance that the conditions at the entity do not present an imminent danger to the health, safety, or welfare of recipients of services;

(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;

(9) for a licensed entity, the names of the recipients of services who would be affected by the variance, and the names and addresses of any representatives of those recipients of services; the requirements of this paragraph do not apply to a child care facility subject to 7 AAC 57 unless this information is requested by the department;

(10) for an assisted living home, assurance that the notice requirements of 7 AAC 10.9515 will be met;

(11) any additional information requested by the department to determine the effect of a variance on the health, safety, and welfare of recipients of services.

History: Eff. 6/23/2006, Register 178

Authority: AS 18.05.010

AS 18.05.040

AS 44.29.020

AS 47.14.120

AS 47.32.010

AS 47.32.030

AS 47.32.130

AS 47.32.140

Editor's note: The request form referred to in 7 AAC 10.9510 may be obtained from the Certification and Licensing section of the Division of Public Health, 619 East Ship Creek Avenue, Suite 232, Anchorage, Alaska 99501.

7 AAC 10.9515. Notice requirements for general variance requests for assisted living homes

(a) If an assisted living home is requesting a general variance for a state statutory or regulatory licensing requirement, the home shall deliver to each affected resident or the resident's representative, no later than five days after submitting a request for a variance, a

(1) copy or summary of the request; and

(2) notice that states

(A) that the resident or representative has the right to submit comments to the department regarding the request; and

(B) the date by which any comments must be received by the department.

(b) The home shall provide to the department a statement indicating compliance with (a) of this section.

(c) The department will consider any timely comments received under this section in determining whether to grant a general variance.

History: Eff. 6/23/2006, Register 178

Authority: AS 18.05.010

AS 18.05.040

AS 44.29.020

AS 47.14.120

AS 47.32.010

AS 47.32.030

AS 47.32.130

AS 47.32.140

7 AAC 10.9520. Evaluation of a request for a general variance

The department will evaluate a request for a general variance by

(1) investigating the statements in the request form;

(2) inspecting the entity, if appropriate; and

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

(A) conferring with the applicant or licensee regarding the request;

(B) discussing the request with the affected recipients of services or their representatives, as appropriate, to determine whether they support granting the variance.

History: Eff. 6/23/2006, Register 178

Authority: AS 18.05.010

AS 18.05.040

AS 44.29.020

AS 47.14.120

AS 47.32.010

AS 47.32.030

AS 47.32.130

AS 47.32.140

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