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
164.501
1 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.
Notes
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