12 Colo. Code Regs. § 2518-1-30.920

Current through Register Vol. 47, No. 20, October 25, 2024

Section 12 CCR 2518-1-30.920 - STATE LEVEL APPEALS PROCESS

A. Substantiated perpetrator(s) of mistreatment shall have the right to a State level appeal to contest the substantiated finding. The request for appeal of the decision shall first be submitted to the State Department unit designated to handle such appeals. If the State Department and the appellant are unable or unwilling to resolve the appeal in accordance with the provisions set forth below in this section, the State Department shall forward the appeal to the Office of Administrative Courts (OAC) to proceed to a fair hearing before an Administrative Law Judge (ALJ).

B. The grounds for appeal shall consist of the following:

1. The substantiated finding(s) are not supported by a preponderance of credible evidence; or,

2. The actions ultimately found to be substantiated as mistreatment do not meet the statutory or regulatory definition of mistreatment.

C. The substantiated perpetrator(s) of mistreatment shall have ninety (90) calendar days from the date of notice of substantiation of mistreatment to appeal the finding in writing to the State Department. The written appeal shall be submitted via the State approved online form or using the hard copy appeal form provided to the substantiated perpetrator by the county department and shall include:

1. The contact information for the appellant;

2. A statement detailing the basis for the appeal; and,

3. Notice of finding of responsibility for mistreatment of an at-risk adult sent to the appellant by the county department.

D. The State level appeal process must be initiated by the substantiated perpetrator(s) of mistreatment or his/her attorney. The appellant does not need to hire an attorney to file an appeal. If the substantiated perpetrator(s) is a minor child, the appeal may be initiated by his/her parents, legal custodian, or attorney.

E. The appeal must be submitted to the State Department within ninety (90) calendar days of the date of the notice of the substantiated finding. If the appeal is filed more than ninety (90) calendar days from the date of notice of the substantiated finding, the appellant must show good cause for not appealing within the prescribed time period as set forth in Section 30.920.C . A failure to request State review within the ninety-day (90) period without good cause shall be grounds for the State Department to not accept the appeal.

F. The substantiated finding shall continue to be used for safety and risk assessment, employment and background screening by the State Department while the administrative appeal process is pending.

G. The appellant shall have the right to appeal, even if a court action or criminal prosecution is pending as a result of the mistreatment. The State Department shall hold in abeyance the administrative appeal process pending the outcome of the court action or criminal prosecution if requested by the appellant, or if the State Department determines that awaiting the outcome of the court case is in the best interest of the parties. If the appellant objects to the continuance, the continuance shall remain in place, but the continuance of the appeal shall not exceed one hundred eighty (180) calendar days without the appellant having the opportunity to seek a review of the continuance by an administrative law judge. The pendency of other court proceedings shall be considered good cause to extend the continuance of the appeal past the one hundred eighty (180) day timeframe.

H. The following circumstances shall be considered to be admissions to the factual basis of the substantiated finding(s) of the responsibility for the mistreatment of an at-risk adult in CAPS and shall be considered conclusive evidence of the factual basis of the individual's responsibility for the mistreatment to support a motion for summary judgment submitted to the Office of Administrative Courts:

1. The appellant has been found guilty of a crime against an at-risk adult pursuant to Section 18-6.5-103, C.R.S. arising out of the same factual basis as the substantiated finding in CAPS.

2. The appellant has been found guilty or has pled guilty or nolo contendere as part of any plea agreement including, but not limited to, a deferred judgement agreement to a crime against an at-risk adult pursuant to Section 18-6.5-103, C.R.S. arising out of the same factual basis as the substantiated finding in CAPS.

3. The appellant has been found guilty or has pled guilty or nolo contendere as part of any plea agreement including, but not limited to, a deferred judgment agreement, in a case in which a crime against an at-risk adult was charged pursuant to Section 18-6.5-103, C.R.S., arising out of the same factual basis as the substantiated finding in CAPS. The offense to which the appellant pled guilty must be related to the same factual basis as the substantiated finding in CAPS.

I. After the appellant requests an appeal, the State Department shall inform the appellant of the details regarding the appeal process, including timeframes for the appeals process and contact information for the State Department.

1. The appellant, as the party in interest, shall have access to the investigative record relied upon by the county department to make the finding in order to proceed with the appeal. The appellant's use of the investigative record for any other purpose is prohibited unless otherwise authorized by law.

2. Prior to providing access to the appellant, the State Department shall redact identifying information contained in the investigative record and documents to ensure compliance with all state and federal confidentiality laws and rules regarding adult mistreatment records or other protected information, including but not limited to: reporting party name(s) and address(es), Social Security Number or alien registration number and information pertaining to other parties in the case that the appellant does not have a legal right to access.

J. The State Department is authorized to enter into settlement negotiations with the appellant as part of the litigation process. The State Department is authorized to enter into settlement agreements that modify, overturn or expunge the reports and/or findings as reflected in the State portion of CAPS. The State Department is not authorized to make any changes in the county portion of CAPS. In exercising its discretion, the State Department shall take into consideration the best interests of the at-risk adults, the weight of the evidence, the severity of the mistreatment, any patterns of mistreatment reflected in the record, the results of any court processes, the rehabilitation of the appellant and any other pertinent information.

K. The county department's findings shall not be changed to reflect the State Department's response to the appeal. The State Department shall document all decisions and the outcome of the appeal in CAPS.

L. The State Department and the appellant shall have one hundred twenty (120) calendar days from the date the State Department receives the appeal to resolve the issue(s) on the appeal. The one hundred twenty (120) day time frame may be extended by agreement of both the appellant and the State Department if it is likely that the additional time will result in a fully executed settlement agreement or resolution of the appeal.

M. As soon as it is evident within the one hundred twenty (120) days that the appellant and State Department will not resolve the issue(s) on appeal, the State Department shall forward a copy of the appellants original appeal document(s) to the Office of Administrative Courts to initiate the Office of Administrative Courts fair hearing process.

N. If, by the end of the one hundred twenty (120) day period, the State Department has been unable to contact the appellant using the information submitted by the appellant, including by first class mail, and the appellant has not contacted the State Department, the appeal shall be deemed abandoned. The substantiated finding entered into CAPS by the county department shall be upheld in CAPS without further right of appeal. The State Department shall notify the appellant of this result by first class mail to the address provided by the appellant.

O. A health oversight agency is defined consistent with the provisions of federal regulations found at 45 CFR 164.501¹ as of 2021, herein incorporated. This rule does not contain any later amendments or editions. The regulation are available at https://www.ecfr.gov. This regulation is also available for inspection and copying at the Colorado Department of Human Services, Administrative Review Division, 3550 W. Oxford Ave., Denver CO, 80236, during regular business hours.

Pursuant to section 26-3.1-111(5)(h), C.R.S., a health oversight agency within DORA or a regulator as defined in section 12-20-102(14), C.R.S., may request appeal information from the State Department for the purpose of a regulatory investigation conducted pursuant to section 12-20-401, C.R.S. when making the request to the State Department, a health oversight agency within DORA or regulator must include the information provided to DORA through the notification process outlined in 30.520 D(2), if such notification occurred. If such notification did not occur, a health oversight agency within DORA or regulator must include, at minimum, the following information:

1. The professional's name,

2. The name of the mistreated adult, and

3. The nature of the allegation(s), to include the type and severity of the mistreatment, if known.

P. After the State Department receives the request from a health oversight agency within DORA or a regulator, the State Department will provide that agency with the appeal summary for the purposes of the regulatory investigation.

Q. Appeal information provided to a health oversight agency within DORA or a regulator is confidential, not subject to part 2 of article 72 of title 24, C.R.S., and must be used only for purposes of a regulatory investigation conducted pursuant to section 12-20-401.

12 CCR 2518-1-30.920

37 CR 15, August 10, 2014, effective 9/1/2014

40 CR 01, January 10, 2017, effective 2/1/2017

41 CR 05, March 10, 2018, effective 4/1/2018

41 CR 09, May 10, 2018, effective 6/1/2018

41 CR 13, July 10, 2018, effective 7/30/2018

42 CR 17, September 10, 2019, effective 10/1/2019

42 CR 23, December 10, 2019, effective 12/30/2019

43 CR 13, July 10, 2020, effective 8/1/2020

43 CR 21, November 10, 2020, effective 11/30/2020

44 CR 11, June 10, 2021, effective 6/30/2021

45 CR 03, February 10, 2022, effective 3/2/2022

45 CR 19, October 10, 2022, effective 11/1/2022