7 AAC 75.410. GROUNDS FOR VARIANCE.

(a) Subject to (b) and (c) of this section, the licensing agency may grant an assisted living home a temporary or permanent variance from a
requirement of AS 47.33 or this chapter to allow the home to
(1) meet the goals of AS 47.33 and this chapter in a way that differs from the methods
set out in AS 47.33 or this chapter;
(2) promote aging in place to minimize the need for a resident to move from the home;
(3) integrate mentally, developmentally, and physically disabled residents into the
community to reach their highest level of functioning; or
(4) encourage the establishment or operation of an assisted living home with fewer than six residents, if compliance with AS 47.33 and this chapter by a home of that size would be unduly burdensome.
(b) The licensing agency will not grant a variance unless the terms of the variance adequately protect the health and safety of the residents of the home.
(c) The licensing agency will not grant a variance
(1) that permits a home to avoid the requirements of
(A) AS 47.33.100 or 7 AAC 75.215, regarding criminal background checks; or
(B) 7 AAC 75.310, regarding acceptance and management of residents’
money; or
(2) for a requirement of AS 47.33 to a home licensed to serve six or more residents.

7 AAC 75.415. TEMPORARY VARIANCE TO ADMIT A CHILD FOR CARE IN

AN ASSISTED LIVING HOME. An assisted living home may apply for a temporary variance to admit a specific child by name for care if the home and a referring agency, in addition to meeting all other requirements of 7 AAC 75.410 – 7 AAC 75.450, develop a plan of safety that
(1) ensures the health and safety of the adults in the home;
(2) ensures the health and safety of the child; and
(3) is approved by the licensing agency, by the child’s representative, and by each
resident of the home or the representative for each resident.

7 AAC 75.420. APPLICATION FOR VARIANCE, GENERALLY.

(a) An applicant for a variance shall deliver to each resident of the home, or the resident’s representative, no later than five
days after filing an application for a variance, a
(1) copy or summary of the application; and
(2) notice that states
(A) that the resident or representative has the right to comment on the application for a variance; and
(B) the date by which a resident’s comments on the application must be received by the licensing agency.
(b) An applicant for a variance shall provide to the licensing agency a statement indicating that the applicant has complied with (a) of this section.
(c) The licensing agency will consider the comments received from residents or their representatives in determining whether to grant an application for a temporary or permanent variance.
(d) If the licensing agency has approved a plan of correction following a notice of violation under AS 47.33.530, the home may operate under the plan without having to submit an application for a temporary variance.

7 AAC 75.430. APPLICATION FOR TEMPORARY VARIANCE.

Assisted living home shall apply for a temporary variance in the manner that the licensing agency directs. The
application must state the
(1) statute from which the temporary variance is sought for a home with fewer than six residents;
(2) regulation from which the temporary variance is sought;
(3) reason the home is unable to comply with the statute or regulation, and a description of the way the home is not in compliance;
(4) period for which the variance is requested;
(5) applicant’s plan for bringing the home into compliance before the expiration of the temporary variance;
(6) applicant’s plan for protecting the health and safety of the residents during the period of the variance;
(7) applicant’s assurance that the conditions of the home do not present an imminent danger to residents; and
(8) names of the residents of the home and the names and addresses of any representatives of residents.

7 AAC 75.440. EVALUATION OF APPLICATION FOR TEMPORARY

VARIANCE. The licensing agency will evaluate each application for a temporary variance by
(1) investigating the statements in the application;
(2) inspecting the assisted living home, if appropriate for the type of variance requested; and
(3) taking one of the following actions:
(A) conferring with the assisted living home regarding the application;
(B) discussing the application with the residents or the representatives of the residents, to determine whether they believe that granting the variance is in their best interest; or
(C) both conferring and discussing under (A) and (B) of this paragraph.

7 AAC 75.450. GRANT OR DENIAL OF TEMPORARY VARIANCE.

(a) The licensing agency may grant a temporary variance, for a period not to exceed one year, if it determines that the home
(1) is unable to comply with the provision from which the variance is sought because of circumstances beyond the control of the home;
(2) has an effective plan for bringing the home into compliance during the term of the temporary variance; and
(3) is able to adequately provide for the health and safety of the residents of the home during the term of the temporary variance.
(b) The licensing agency will issue a written decision on an application for a temporary variance and will deliver a copy of the decision to the applicant, personally or by certified mail, and to each resident, or representative of the resident, of the home.
(c) A decision by the licensing agency to grant a temporary variance will state the duration of the variance and the steps that the home must take to bring the home into compliance before the variance expires.
(d) An assisted living home shall attach the temporary-variance decision to the license during the period it is in effect and shall make it available with the license to residents, prospective residents, or representatives, service providers, staff, and the general public.
(e) A decision by the licensing agency to deny a temporary variance will state the reasons for the denial. The affected home may reapply for a temporary variance, addressing the agency’s stated reasons for the denial. In the alternative, the home may apply for a permanent variance under 7 AAC 75.460.

7 AAC 75.460. APPLICATION FOR PERMANENT VARIANCE.

An assisted living home shall apply for a permanent variance in the manner that the licensing agency directs. The
application must state
(1) the statute from which permanent variance is sought for a home with fewer than six residents;
(2) the regulation from which the permanent variance is sought;
(3) the reason the home is unable to comply with the statute or regulation, and a description of the way the home is not in compliance;
(4) the reason that
(A) strict compliance with the statute or regulation will impose a substantial economic, technological, programmatic, legal, or medical hardship on the home or a resident of the home;
(B) the variance will improve the quality of life for the home’s residents; or
(C) the variance will afford a unique treatment opportunity;
(5) the alternative proposed by the applicant to meet the goal of the statute or regulation from which the variance is sought; and
(6) how the alternative proposed by the home will adequately protect the health, safety, and welfare of the home’s residents.

7 AAC 75.470. EVALUATION OF APPLICATION FOR PERMANENT

VARIANCE. The licensing agency will evaluate each application for a permanent variance by
(1) investigating the statements in the application;
(2) inspecting the assisted living home if appropriate for the type of variance requested; and
(3) taking one of the following actions:
(A) conferring with the assisted living home regarding the application;
(B) discussing the application for a variance with the residents or their representatives, to determine whether they believe that granting the variance is in their best interest; or
(C) both conferring and discussing under (A) and (B) of this paragraph.

7 AAC 75.480. GRANT OR DENIAL OF PERMANENT VARIANCE.

(a) The licensing agency may grant a permanent variance if it determines that
(A) strict compliance with the statute or regulation from which the variance is sought cannot be accomplished without a substantial economic, technological, programmatic, legal, or medical hardship;
(B) the variance will improve the quality of life for the home’s residents; or
(C) the variance will afford a unique treatment opportunity; and
(2) that the home has an effective plan for meeting the goal of the statute or regulation from which a permanent variance is sought, and that, after discussion with or information from the residents, or the residents’ representatives, regarding the request for variance and the plan for meeting the goal of the statute or regulation, the plan adequately protects the health, safety, and welfare of the
residents and meets the standards of AS 47.33 and this chapter.
(b) The licensing agency will issue a written decision on an application for a permanent variance and will deliver a copy of the decision to the applicant, personally or by certified mail, and to each resident of the home or the resident’s representative.
(c) Upon granting a permanent variance, the licensing agency will issue a new license containing a description of the permanent variance.
(d) A permanent variance remains in effect for the duration of the license and will be incorporated into each license renewal, unless the licensing agency finds good cause to revoke the variance.
(e) The licensing agency may include in its decision to grant a permanent variance reasonable conditions on the variance.
(f) The licensing agency will include in its decision to deny a permanent variance the reasons for the denial.

7 AAC 75.490. APPEAL FROM DENIAL OF VARIANCE.

(a) A decision to deny a variance may be contested as provided in AS 47.33.560 and the Administrative Procedure Act, AS
(b) If the applicant decides to contest the denial, the applicant must appeal in writing, within 30
days after receiving the denial, to the director of the division of senior services in the Department of
Administration or the director of the division of mental health and developmental disabilities in the
Department of Health and Social Services, depending upon which agency denied the application. In the
appeal petition, the applicant may request an oral hearing. If an oral hearing is not requested, the appeal
will be decided on the basis of review of the original record and whatever additional documents and
written argument the applicant presents with the appeal petition. The denial under 7 AAC 75.450 or 7
AAC 75.480 serves as the statement of issues under AS 44.62.370. The decision of the respective
director constitutes the decision of the licensing agency for the purposes of reconsideration, under AS
44.62.540, and judicial review, under AS 44.62.560.

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