12 Colo. Code Regs. § 2518-1-30.960

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

Section 12 CCR 2518-1-30.960 - EMPLOYER CAPS CHECKS

A. Pursuant to Section 26-3.1-111(6)(a)(I), C.R.S., beginning January 1, 2019, the following employers shall request a CAPS check prior to hiring or contracting with a new employee who will provide direct care to an at-risk adult, except when the employer is hiring or contracting with an employee provided by a staffing agency, if the staffing agency completed a CAPS check and provided the results to the employer as directed in Section 30.960.D and pursuant to Section 26-3.1-111 (6)(a)(V), C.R.S. employers, and may request a CAPS check for existing employees or volunteers who provide direct care to an at-risk adult.

1. Health facilities licensed pursuant to Section 25-1.5-103, C.R.S., including those wholly owned and operated by any governmental unit;

2. Adult day care facilities, as defined in Section 25.5-6-303(1), C.R.S.;

3. Community integrated health care service agencies, as defined in Section 25-3.5-1301(1);

4. Community-Centered Boards or program-approved service agencies that provide or contract for services and supports, pursuant to C.R.S. Article 10 OF Title 25.5;

5. Single Entry Point agencies, as described in Section 25.5-6-106, C.R.S.;

6. Area Agencies on Aging, as defined in Section 26-11-201(2), C.R.S., and any agency or provider the Area Agency on Aging contracts with to provide services;

7. Facilities operated by the State Department for the care and treatment of persons with mental illness, pursuant to C.R.S. Article 65 OF Title 27;

8. Facilities operated by the State Department for the care and treatment of persons with intellectual and developmental disabilities, pursuant to C.R.S. Article 10.5 OF Title 27;

9. Veterans Community Living Centers, operated pursuant to C.R.S. Article 12 OF Title 26;

10. The Office of Public Guardianship pursuant to Section 13-94-105(6), C.R.S.; and,

11. Staffing agencies, as defined in Section 30.100, when they are placing employees with an employer described in Section 30.960.A and pursuant to Section 26-3.1-111(7)(a) to (7)(j), C.R.S.

B. Pursuant to Section 26-3.1.-111(3)(b), C.R.S., beginning January 1, 2022, the state department shall provide the courts the results of a CAPS check, upon the court's request, for a potential appointee as a conservator or guardian of an at-risk adult, with the exception of county department Adult Protective Services staff who are already required to undergo a CAPS check pursuant to Section 26-3.1-107(2), C.R.S., and the Office Of Public Guardianship staff required to undergo a CAPS check pursuant to Section 26-3.1-111(7)(j), C.R.S.

C. Pursuant to Section 26-3.1-111(8), a person hiring someone to provide consumer-directed attendant support services (CDASS), pursuant to C.R.S. Article 10 of Title 25.5, may request a CAPS check at the person's expense.

D. Pursuant to Section 26-3.1-111(6)(a)(V), C.R.S., beginning January 1, 2024, a staffing agency shall request a CAPS check for an employee it is placing with an employer outlined in Section 30.960.A. The staffing agency shall provide the employer with a copy of the official results of the CAPS check received from the state department and a copy of any official flagged check, pursuant to Section 26-3.1-111(10), C.R.S., against the employee that is received by the state department, within five business days after receipt of the information, for the duration of the employee's placement with the employer.

E. Employers identified in Section 30.960.A shall provide access to county departments conducting investigations of mistreatment of at-risk adults pursuant to Section 26-3.1-103 (1.3), C.R.S and Section 30.510.J

F. Authorized requestors shall register prior to requesting a CAPS check to allow for verification of the authorized requestor's legal authority to request the check.

1. The authorized requestor is responsible for ensuring the registration information is up to date.

2. There shall be no fee to the authorized requestor to register.

3. The authorized requestor shall only access the CAPS check system for business needs related to CAPS check requirements.

a. All authorized requestors must electronically sign the security and confidentiality agreement when registering and follow the requirements therein.

b. All authorized requestors shall not share username or password information with any other individual, regardless of whether that individual is also an authorized requestor. Each authorized requestor must have their own username and password.

c. Violations of security and confidentiality requirements may result in loss of access to the system, at the discretion of the state department.

G. Using a form developed by the State Department, authorized requestors shall obtain written authorization and any required identifying information from the new or existing employee or volunteer or potential appointee prior to requesting a CAPS check. Required identifying information necessary to request the CAPS check includes information such as name, date of birth, and email address, etc.

1. The form must be completed and signed by the employee, volunteer, or potential appointee.

2. Knowingly providing inaccurate information on the written authorization form is a class 2 misdemeanor as set forth in Section 26-3.1-111(6) (e.7), C.R.S.

3. The CAPS Check Unit (CCU) may request the employee's, volunteer's, or potential appointee's written authorization form from the employer or the court as supporting documentation.

H. The state department of human services does not determine:

1. Which employees or volunteers provide direct care as described in Section 30.100 and pursuant to Section 26-3.1-101 (3.5), C.R.S. employers are responsible for determining which employees and/or volunteers will provide direct care, thereby requiring CAPS checks. Employers shall make determinations based on the definition of direct care outlined in Section 30.100 and/or any guidance or regulations set forth by the employer's oversight agency.

2. Whether a substantiated finding reported on an initial CAPS check and/or a flagged check disqualifies an employee from providing care to at-risk adults. Employers are responsible for determining whether the results of the CAPS check disqualify the employee or volunteer from employment. Employers shall make determinations based on any internal processes and/or any guidance or regulations set forth by the employer's oversight agency.

I. Authorized requestors shall request a CAPS check using an online or hard copy form developed by the State Department.

1. If more than thirty (30) days have elapsed between an employer's request for a CAPS check for a potential employee or volunteer, and the employer's decision to initiate hiring, the employer must request a new CAPS check prior to hiring the employee or volunteer.

2. If an employee or volunteer leaves employment but is considered for rehire after more than thirty (30) days have elapsed since leaving employment, the employer must request a new CAPS check prior to rehire.

3. If the court does not appoint the potential appointee as a guardian or conservator but the person is considered for appointment as a guardian or conservator of an at-risk adult more than thirty (30) days after the court's case was closed, the court must request a new CAPS check prior to appointment in a new case. Until such time as the court closes the case or is no longer considering the potential appointee's original petition for appointment, the 30-day time limitation on the CAPS check does not begin to run.

a. If a potential appointee is nominated for appointment as a guardian or conservator of an at-risk adult in multiple courts, each court must conduct its own CAPS check on said potential appointee to ensure that each court is notified in the event of a flagged check.

b. Potential appointees who are professionals, are defined as, "an individual or entity engaged in the business of providing services as guardian or conservator, who is not related to the respondent in a case by blood, law, or marriage. Such professionals usually act as guardian or conservator for two or more individuals". If said professional appointee is nominated for appointment as a guardian or conservator:

i. Of an at-risk adult in multiple courts, each court must conduct its own CAPS check on said appointee to ensure each court is notified in the event of a flagged check.

ii. For multiple at-risk adults in a single court, that court will only need to conduct one CAPS check on said potential appointee.

4. If an authorized requestor requests the results of a previously completed CAPS check to be re-sent:

a. If the request is submitted to the state department within 180 days of the completion of the CAPS check, the CAPS check results will be re-sent to the authorized requestor at no additional cost.

b. If the request is submitted to the state department more than 180 days after initial completion, a new CAPS check request may need to be submitted by the authorized requestor, as described in Section 30.960.I and J, based on the circumstances of the request and the discretion of the state department

5. If the information provided for the CAPS check is incomplete the CCU may request additional information from the employer or the court.

a. If the additional information is not provided by the employer or the court the CCU will close the request and will not conduct the CAPS check.

b. the fee for the CAPS check shall not be refunded to the employer or the court.

6. If an employer or the court provides information the CCU has reason to believe is inaccurate:

a. The CCU will contact the employer or the court regarding the information believed to be inaccurate.

b. The CCU may request the employer or the court to provide the written authorization form to the CCU. If the employer or the court does not provide the written authorization form, the CCU will close the request and will not conduct the CAPS check. The CAPS check fee will not be refunded.

c. If the CCU identifies a pattern of inaccurate information being provided by an employer or court, the CCU will implement steps to address the pattern, which may include, but are not limited to, contacting the agency administrator, requiring submission of the written authorization form with each CAPS check request, and/or requesting legal assistance to resolve the concerns.

d. Knowingly providing inaccurate information on a CAPS check request is a class 2 misdemeanor, as outlined in Section 26-3.1-111(6) (e.7), C.R.S.

7. If a screening company that requests CAPS checks on behalf of an employer provides information the CCU has reason to believe is inaccurate:

a. The CCU will contact the employer and/or screening company regarding the information believed to be inaccurate.

b. The CCU may request the screening company to provide the written authorization form to the CCU. If the screening company does not provide the written authorization form, the CCU will close the request and will not conduct the CAPS check. The CAPS check fee will not be refunded.

c. If the CCU identifies a pattern of inaccurate information being provided by a screening company hired by an employer, the CCU will implement steps to address the pattern, which may include, but are not limited to, contacting the employer that hired the screening company, requiring submission of the written authorization form with each CAPS check request, prohibiting the screening company from requesting CAPS checks, and/or requesting legal assistance to resolve the concerns.

d. Knowingly providing inaccurate information on a CAPS check request is a class 2 misdemeanor, as outlined in Section 26-3.1-111(6) (e.7), C.R.S.

8. Submitting a CAPS check request for an individual who is not being considered for an employee or volunteer position providing direct care to at-risk adults or providing care through Consumer Directed Support Services or for a person who is not a potential appointee is a class 2 misdemeanor, as outlined in Section 26-3.1-111(6) (e.3), C.R.S.

J. The fee for the CAPS check shall be:

1. Established to provide adequate revenue to support all direct and indirect costs related to the administrative appeals processes for substantiated perpetrators and the CAPS checks.

2. No greater than $16.50 per CAPS check, unless the State Board of Human Services approves an increased fee based upon increased direct and indirect costs of the administrative appeals and CAPS checks.

a. The current CAPS check fee shall be posted ON THE CAPS check website.

b. The current CAPS check fee may be adjusted with THIRTY (30) days' notice, provided via the CAPS check website.

3. Paid by the authorized requestor at the time of the request.

a. If the authorized requestor chooses to request the CAPS check via the online form, payment must be made through the online payment system at the time of the request. A CAPS check will not be completed without payment.

b. If the authorized requestor chooses to request the CAPS check via first class mail, payment in the form of an agency warrant or bank check must be attached to the form. A CAPS check will not be completed without payment.

c. Authorized requestors may choose to request that the employee, volunteer, or potential appointee reimburse the authorized requestor for the cost of the check.

K. The State Department shall complete the CAPS check and respond to the employer's request as soon as possible, but no later than five (5) business days following the receipt of the request. The State Department shall complete the CAPS check and respond to the court's request as soon as possible, but no later than seven (7) calendar days following the receipt of the request.

1. The State Department shall provide the CAPS check results to the authorized requestor via email, unless receipt of the results via first class mail is requested.

a. If the employee is also the employer who requested the CAPS check on themselves, such as a facility administrator or owner, or an independent owner operator, and the employee/employer is determined not to have a substantiated finding of mistreatment, the results will be provided to the employee/employer.

b. If the employee is also the employer who requested the CAPS check on themselves, such as a facility administrator or owner, or an independent owner operator, and the employee/employer is determined to have a substantiated finding of mistreatment, the results will be provided to the employee/employer and to the parent company and/or oversight agency(ies).

L. The CAPS check results shall indicate:

1. Whether there is or is not a substantiated finding for the employee, volunteer, or potential appointee;

2. The purposes for which the information in CAPS may be made available;

3. The consequences of improper release of the information in CAPS;

4. If the person does have a substantiated finding, the results will also provide the date(s) of the substantiated finding(s), county department(s) that completed the investigation(s), the type(s) and severity level(s) of the mistreatment, and the substantiated perpetrator's right to appeal and the time frame allowed by rule to request an appeal. No additional information about the mistreatment and/or substantiated finding will be provided through the CAPS check process.

5. For CAPS check results for the court in which there is a substantiated finding, the CAPS check results will also include whether there is an active appeal at the time of the court's request. No additional information about the mistreatment and/or substantiated finding will be provided through the CAPS check process.

M. Notification of any flagged check shall be provided to the authorized requestor, the employer, or to the employee/employer's parent company and/or oversight agency(ies), as outlined in Section 30.960.K.1.b, at the time the new finding is completed in CAPS, after verification that the flagged check relates to a current employee or volunteer.

N. Findings shall not be included in CAPS check results when:

1. The finding was made prior to July 1, 2018 when due process for substantiated perpetrators began, as outlined in Section 30.910; and/or,

2. The finding was expunged or overturned through the appeals process, as outlined in Section 30.920; and/or,

3. A positive match of at least two data points between the employee and a substantiated perpetrator in CAPS, such as name, date of birth, or address, cannot be determined with certainty.

O. An employer, or a person or entity conducting screening on behalf of an employer, shall obtain CAPS checks for the purpose of informing hiring and employment decisions.

1. A staffing agency providing direct care staff to an employer described in Section 30.960.A and pursuant to Section 26-3.1-111(7), C.R.S. shall provide the employer with a copy of the official results of the CAPS check and a copy of any official flagged checks, as described in Section 30.960.M and pursuant to Section 26-3.1-111(10), C.R.S., within five business days after receipt of the information, for the duration of the employee's placement with the employer.

2. Nothing in this section prohibits an employer from hiring or contracting with an employee who will provide direct care to an at-risk adult prior to receiving the results of the CAPS check.

P. Information obtained through a CAPS check by an authorized requestor is confidential and shall only be released pursuant to Section 26-3.1-111(6)(d), C.R.S.

1. CAPS checks shall only be released by the state department to an employer, a person or entity conducting employee screening on behalf of an employer, or to a county department conducting CAPS checks on potential APS employees, as outlined in Section 30.320.

2. An employer, or a person or entity conducting employee screening on behalf of an employer, may lawfully release information received through a CAPS check as outlined below:

a. To the employer;

b. To a state agency or its contractor, upon the request of the agency or contractor, for purposes of an employer inspection or survey or for purposes of a regulatory investigation conducted by a health oversight agency, as defined in 42 CFR 164.501 pursuant to Section 12-20-401, C.R.S.; or,

c. At the request of a current or prospective employer of a health-care worker or caregiver in accordance with Section 8-2-111.6 or Section 8-2-111.7, C.R.S.

3. Section 26-3.1-111(6)(e), C.R.S., creates a criminal penalty for any person who improperly releases or who willfully permits or encourages the release of data or information obtained through a CAPS check to persons not permitted access to the information pursuant to C.R.S. Title 26, Article 3.1.

4. An employer, or a person or entity conducting employee screening on behalf of an employer, who releases the results of a CAPS check to anyone other than those directly involved in the employer's hiring process, except as required of staffing agencies in Section 30.960.O.2., violates the law pursuant to Section 26-3.1-111(D)(I)(B), C.R.S.

5. The provisions of this subsection are in addition to and not in lieu of other applicable federal and state laws or requirements concerning protected confidential information. Employers are responsible for ensuring adherence to applicable federal and state requirements regarding the use of information obtained during any pre-employment screening and/or hiring processes.

12 CCR 2518-1-30.960

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

46 CR 23, December 10, 2023, effective 1/1/2024