Sec. 14.31.05.12. Variance and Waiver

A. Request for Variance.

(1) An applicant or licensee may submit to the licensing agency a written request for a variance.

(2) An applicant or licensee shall demonstrate that the variance will:

(a) Meet or produce the intended effect of each regulation for which the variance is requested; and

(b) Maintain the health, safety, and well-being of the children in the program at or above the level required by the regulation for which the variance is requested.

B. Licensing Agency Action on Request for Variance.

(1) The licensing agency shall act on a request for variance and notify the applicant or licensee of its decision within 30 days of receipt of the request, except for good cause.

(2) The licensing agency may grant the request for a variance if:

(a) The applicant or licensee submitted the request in accordance with the provisions of §A of this regulation;

(b) The applicant or licensee has complied with all other licensing regulations; and

(c) The licensing agency determines that the requested variance will meet the requirements of §A(2) of this regulation.

(3) Unless otherwise specified in the licensing agency's decision, a variance remains in effect for the term of the license.

C. Request for Waiver.

(1) An applicant or licensee may submit to the licensing agency a written request for a waiver.

(2) The applicant or licensee shall include in the request specific facts upon which the waiver is requested and shall demonstrate that:

(a) The waiver is necessary to meet the requirements of State or federal law; or

(b) It would be unduly burdensome and inequitable for the applicant or licensee to comply with the provisions of the regulation for which the waiver is requested; and

(c) Under the waiver, the program will maintain the health, safety, and well-being of the children in the program at or above the level required by the regulation for which the waiver is sought.

D. Licensing Agency Action on Request for Waiver.

(1) The licensing agency shall act on a request for a waiver and notify the applicant or licensee of its decision within 30 days of receipt of the request, except for good cause.

(2) The licensing agency may grant the request for a waiver if:

(a) The applicant or licensee submitted the request in accordance with the provisions of §C of this regulation;

(b) The waiver is consistent with State law;

(c) The health, safety, and well-being of the children in the program is not jeopardized by the granting of the waiver; and

(d) The licensing agency determines that the requested waiver meets the requirements of §C(2) of this regulation.

(3) Unless otherwise specified in the licensing agency's decision, a waiver remains in effect for the term of the license.

(4) Appeals. An applicant or licensee aggrieved by the decision of the licensing agency on a request for a variance or waiver may appeal the decision under Regulation .10 of this chapter.