Virginia Law

A. The licensee or applicant shall make a written request for consideration of an allowable variance. The department's licensing representative may provide consultation to the applicant or licensee in the development of the written request and throughout the allowable variance process.

1. The licensee or applicant shall describe the special hardship or hardships to the existing program or to a planned innovative or pilot program that will be caused by the enforcement of the requirement or requirements.

2. The licensee or applicant shall propose alternatives to meet the purpose of the requirement that will ensure the protection and well-being of persons in care.

3. The licensee or applicant shall obtain, when requested by the department, the opinions of professionals in the field or documented research, or both, that the proposed activities, facilities, or equipment are not injurious to persons in care.

4. The department can authorize allowable variances only to its own licensing standards, not to regulations of another agency or to any requirement in federal, state, or local laws.

B. The department's licensing representative will notify the petitioning applicant or licensee of the department's decision.

C. Approval.

1. The department may attach conditions to the granting of the allowable variance in order to protect persons in care.

2. Allowable variances are conditional upon there being no change in the circumstances that were the basis for the approval. Any allowable variance may be rescinded or modified if needs or conditions change; additional information becomes known that alters the basis for the original decision; the applicant or licensee fails to meet any conditions attached to the allowable variance; or results of the allowable variance jeopardize the safety, comfort, or well-being of persons in care.

3. Allowable variances expire automatically when there is a change in the facility's location or a change in the sponsorship of the facility or agency.

EXCEPTION: Allowable variances issued to family day systems are transferable when agencies change location.

4. The department's licensing representative will review each allowable variance at least annually. At minimum, this review shall address the impact of the allowable variance on persons in care, adherence to any conditions attached, and the continuing need for the allowable variance.

D. Denial.

1. When the decision is to deny a request for an allowable variance, the reason will be provided in writing to the applicant or licensee.

2. When a request for an allowable variance is denied, it may be reconsidered if the applicant or licensee submits another written request and provides new or additional supporting information within 30 days of denial.

NOTE: After the 30-day period, the applicant or licensee may submit a new allowable variance request describing changed conditions.

3. The department will reconsider the new request and the additional information and will notify the applicant or licensee of the decision within 30 days of receipt of the second request. This decision will be considered final and is not appealable.

E. When an allowable variance is denied, expires, or is rescinded, routine enforcement of the standard or portion of the standard shall be resumed.

F. The applicant or licensee may at any time withdraw a request for an allowable variance.