9 CAR pt. 40, Appendix F. Alternative Compliance and Policy Waiver Protocol

APPENDIX F: ALTERNATIVE COMPLIANCE AND POLICY WAIVER PROTOCOL 06/2022 “Policy Waiver” is defined as a request to deviate from the Division of Children and Family Services (DCFS) policy and procedures. The Division of Children and Family Services Director or designee approves all policy waiver requests. The following require a policy waiver: A. Any misdemeanor convictions, except for minor traffic violations; B. Driving Under the Influence or Driving While Intoxicated; C. Any issues that are not in compliance with DCFS Policy; and, D. Record of maltreatment. 1) However, any person found to have record of child maltreatment will not only be reviewed by the DCFS Director or designee, but the DCFS Director or designee will also notify and consult with the Child Welfare Agency Review Board, via the Division of Child Care and Early Childhood Education Placement and Residential Licensing Unit Manager as its designee, regarding the policy waiver and any corrective action associated with the policy waiver. “Alternative Compliance” is defined as a request for approval from the Child Welfare Agency Review Board to allow a licensee to deviate from the letter of a regulation. The licensee must demonstrate substantial compliance with the intent of the regulation. This includes, but is not limited to, regulations governing criminal background checks and convictions for prohibited offenses. Traffic violations, other than Driving Under the Influence or Driving While Intoxicated, do not require a policy waiver or Alternative Compliance as they are dealt with through the vehicle safety program. Driving Under the Influence and Driving While Intoxicated violations require a Policy Waiver. The standard protocol for requesting a policy waiver or an Alternative Compliance is the same, up until the point when the request is given to the DCFS Director or designee. The protocol for standard policy waiver and Alternative Compliance requests are as follows: The Family Service Worker will: A. Determine if a policy waiver or Alternative Compliance will be requested based on his or her professional judgment. Issues to take into consideration on criminal convictions and record of maltreatment include: 1) The nature and severity of the crime or maltreatment; 2) Consequences of the crime or maltreatment; 3) Frequency and duration of the crime or maltreatment and when the maltreatment occurred; 4) Relationship between the crime or maltreatment and the health, safety and welfare of any individual; and, 5) For maltreatment offenses listed on the Child Maltreatment Central Registry, whether the offender is eligible to request removal from the Child Maltreatment Central Registry Review Team. B. If approval is recommended by the Family Service Worker Supervisor or designee, the Family Service Worker will request a policy waiver or an Alternative Compliance using the CFS-509-B: Request for Alternative Compliance or policy waiver, and will attach all appropriate supporting documentation, as applicable: 1) Three (3) personal references; 2) CFS-446: In-Home Consultation Visit Report; 3) Current home study, if one has been completed; 4) Copy of the Child Maltreatment Central Registry Check, State Police Criminal Record Check or Federal Bureau of Investigation Background Check resulting in a hit; and, 5) The police report and any other reports regarding any criminal charges or convictions must also be attached as documentation when an Alternative Compliance requested for an excluded criminal offense. The Family Service Worker Supervisor or designee will: A. Determine if the requested policy waiver or Alternative Compliance is appropriate for approval within: 1) Five (5) business days of receipt of the request for traditional applicants; or, 2) Three (3) business days for relatives and fictive kin. Issues to take into consideration include, as applicable: a) The nature and severity of the crime or maltreatment; b) Consequences of the crime or maltreatment; c) Frequency and duration of the crime or maltreatment and when the maltreatment occurred; d) Relationship between the crime or maltreatment and the health, safety, and welfare of any individual such as the: 1) Age and vulnerability of the crime victim; 2) Harm suffered by the victim; and, 3) Similarity between the victim and the person served by a child welfare agency; e) Time elapsed without a repeat of the same or similar event; f) Documentation of successful completion of training or rehabilitation related to the incident; and, g) Any other information that relates to the applicant’s ability to care for children or is deemed relevant. B. If approved, the Family Service Worker Supervisor or designee will send it to the Area Director or designee. C. If denied, the Family Service Worker Supervisor or designee will notify the Family Service Worker and the family. The Area Director or designee will: A. Within five (5) business days of receipt of the request for traditional applicants or three (3) business days for relatives and fictive kin, determine if the requested policy waiver or Alternative Compliance is appropriate for approval based on the considerations previously outlined in this protocol. 1) If approved, the Area Director or designee will send it to the DCFS Director or designee. 2) If denied, the Area Director will return it to the Family Service Worker Supervisor or designee. a) The Family Service Worker Supervisor will notify the Family Service Worker and the family. At this point, the procedures for requesting a policy waiver differ from the procedures for requesting a Family Service Worker Alternative Compliance. Policy Waivers When a policy waiver has been requested, the DCFS Director or designee will, within three (3) business days of receipt of the request: A. Deny any inappropriate request for a policy waiver and return it to the Area Director or designee; or, B. Approve an appropriate request for a policy waiver. The DCFS Director’s or designee’s final decision will be conveyed to the Area Director or designee for appropriate action. Alternative Compliance When an Alternative Compliance has been requested, the DCFS Director or designee will: A. Deny any inappropriate request for an Alternative Compliance and return it to the Area Director or designee within three (3) business days; or, B. Approve an appropriate request for an Alternative Compliance and notify the Area Director or designee and send it to the Placement and Residential Licensing Unit Manager or designee, all within in three (3) business days. The Placement and Residential Licensing Unit Manager will: A. Review the Alternative Compliance request to ensure all required documents are in the packet. B. Request any missing documentation be submitted. C. If all required documentation is included in the Alternative Compliance packet, place the Alternative Compliance request on the agenda of the next scheduled meeting of the Child Welfare Agency Review Board. The Family Service Worker who made the original request for an Alternative Compliance on behalf of the resource parent applicant or resource parent will: A. Notify the resource parent applicant or resource parent of the Child Welfare Agency Review Board meeting at which their presence is required via CFS-510 sent by certified, restricted mail. B. Prepare the resource parent applicant or resource parent for what to expect at the Child Welfare Agency Review Board meeting. C. Appear with the resource parent at the Child Welfare Agency Review Board meeting to answer questions. The Child Welfare Agency Review Board will give final approval or denial of the request for the Alternative Compliance. Temporary Alternative Compliance In an effort to expedite the placement of a child with a safe and appropriate relative or fictive kin, and reduce the amount of trauma a child experiences when entering foster care, a temporary Alternative Compliance may be granted when attempting to place a child with a relative or fictive kin on a provisional basis. A temporary Alternative Compliance may be initiated by the Family Service Worker via phone or email but must go through the chain of command receiving approval from the Family Service Worker Supervisor or designee, the Area Director or designee, and the DCFS Director or designee. If a temporary Alternative Compliance is approved by the Division of Children and Family Services Director or designee, the DCFS Director or designee will then notify the Placement and Residential Licensing Unit Manager or designee of the temporary Alternative Compliance approval. The Placement and Residential Licensing Unit Manager will place the temporary Alternative Compliance request on the next scheduled Child Welfare Agency and Review Board meeting agenda for review. The Family Service Worker will invite the resource parent applicant to that Child Welfare Agency and Review Board meeting via CFS-510. The following crimes require an Alternative Compliance from the Child Welfare Agency and Review Board: (A) Criminal attempt (B) Criminal complicity (C) Criminal conspiracy (D) Criminal solicitation (E) Assault in the first, second, or third degree (F) Aggravated assault (G) Aggravated assault on a family or household member (H) Battery in the first, second, or third degree (I) Breaking or entering (J) Burglary (K) Coercion (L) Computer crimes against minors (M) Contributing to the delinquency of a juvenile (N) Contributing to the delinquency of a minor (O) Criminal impersonation (P) Criminal use of a prohibited weapon (Q) Communicating a death threat concerning a school employee or student (R) Domestic battery in the first, second, or third degree (S) Employing or consenting to the use of a child in a sexual performance (T) Endangering the welfare of a minor in the first or second degree (U) Endangering the welfare of an incompetent person in the second degree (V) Engaging children in sexually explicit conduct for use in visual or print media (W) False imprisonment in the first or second degree (X) Felony abuse of an endangered or impaired person (Y) Felony interference with a law enforcement officer (Z) Felony violation of the Uniform Controlled Substance Act (A)(A) Financial identity fraud (B)(B) Forgery (C)(C) Incest (D)(D) Interference with court ordered custody (E)(E) Interference with visitation (F)(F) Introduction of controlled substance into the body of another person (G)(G) Manslaughter (H)(H) Negligent homicide (I)(I) Obscene performance at a live public show (J)(J) Offense of cruelty to animals (K)(K) Offense of aggravated cruelty to dog, cat, or horse (L)(L) Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child (M)(M) Sexual solicitation (N)(N) Permanent detention or restraint (O)(O) Permitting abuse of a minor (P)(P) Producing, directing, or promoting a sexual performance by a child (Q)(Q) Promoting obscene materials (R)(R) Promoting obscene performance (S)(S) Promoting prostitution in the first, second, or third degree (T)(T) Prostitution (U)(U) Public display of obscenity (V)(V) Resisting arrest (W)(W) Robbery (X)(X) Aggravated robbery (Y)(Y) Sexual offenses (Z)(Z) Simultaneous possession of drugs and firearms (A)(A)(A) Soliciting money or property from incompetents (B)(B)(B) Stalking (C)(C)(C) Terroristic act (D)(D)(D) Terroristic threatening (E)(E)(E) Theft of public benefits (F)(F)(F) Theft by receiving (G)(G)(G) Theft of property (H)(H)(H) Theft of services (I)(I)(I) Transportation of minors for prohibited sexual conduct (J)(J)(J) Unlawful discharge of a firearm from a vehicle (K)(K)(K) Voyeurism An Alternative Compliance may not be requested by any individual who has pleaded guilty or nolo contendere to, or has been found guilty of any of the following offenses as he or she is permanently disqualified from being a resource parent per A.C.A. § 9-28-409(e)(1): A. Abuse of an endangered or impaired person, if a felony; B. Arson; C. Capital murder; D. Endangering the welfare of an incompetent person in the first degree; E. Kidnapping; F. Murder in the first or second degree; G. Rape; or, H. Sexual assault in the first or second degree. An Alternative Compliance may not be requested by any prospective resource parent with a felony conviction for the following offenses, as no foster child in Department of Human Services custody may be placed in such an individual’s home: A. Child abuse or neglect; B. Spousal abuse or domestic battery; C. A crime against children, including child pornography; or, D. A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery. A prospective resource parent may request an Alternative Compliance for a felony conviction for physical assault, battery, or a drug-related offense if the offense was not committed within the past five (5) years. Any conviction requiring an Alternative Compliance that has been expunged or sealed must be reviewed by the Child Welfare Agency and Review Board. A Placement and Residential Licensing Unit Licensing Specialist will monitor DCFS for continued compliance with standards and issue a corrective action notice if any deficiencies are found. The notice will state the agreement regarding the corrective action and a reasonable time frame for the violation to be corrected.