Section 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 10.900. 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 10.990.1, 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 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 4 7 .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.Eff. 2/9/2007, Register 181; am 6/29/2017,Register 222, July 2017Authority: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