12 CCR 2518-1-30.930 - STATE FAIR HEARING BEFORE THE OFFICE OF ADMINISTRATIVE COURTS (OAC)

A. When the Office of Administrative Courts receives the appeal documents from the State

Department, the Office of Administrative Courts shall docket the appeal and enter a procedural order to the parties indicating the following:

1. The date and time for a telephone scheduling conference with the parties.

2. During the telephone scheduling conference, the Office of Administrative Courts shall determine the date for the hearing. Following the scheduling conference, the Office of Administrative Courts will issue a further procedural order and notice of hearing. The order/notice will contain the hearing date, the fourteen (14) day deadline for the notice of issues, the fourteen (14) day deadline for the appellant's response and deadline for filing pre-hearing statements. Any party requiring an extension or modification of any of the deadlines in the order may file a request with the Administrative Law Judge. The office of administrative courts shall also issue a protective order which will protect and govern the handling of all pleadings, discovery, and evidence. The order must be signed by an administrative law judge and must state that:

a. Any documents exchanged by the parties containing confidential information, including, but not limited to pleadings, APS reports and investigative records, medical records, law enforcement investigation records, and documents regarding at-risk adults will be used for the sole purpose of proceeding with this appeal.

b. The parties may disclose confidential information to their attorneys or any expert witness only as necessary for the prosecution or defense of the appeal. The appellant is not authorized to disclose or use confidential information for any other purpose.

c. The parties may exchange discovery containing information that is confidential under department rule 12 CCR 2518-1, § 30.920.

d. To the extent that the parties may disclose confidential records to expert witnesses, the parties shall provide a copy of the protective order to the expert witnesses and advise the expert witness of his or her obligation not to disclose the records or information learned from the confidential records.

e. The exchange and use of the confidential information or records does not waive the right of either party to object to the admission of the documents into evidence on any grounds.

f. If the parties use or offer confidential information or records as evidence during the course of the hearing, counsel and the parties shall take reasonable measures to protect such information or records from public disclosure including but not limited to filing records under seal.

g. The appellant must return to the department all protected health information (including all copies made) at the end of the appeal or, should the appellant choose to pursue any further administrative remedies, when those remedies have been exhausted.

h. The hearing regarding the factual basis for the adult mistreatment finding shall be closed to the public.

i. This order does not prohibit the department from using documents or information as authorized, required, or permitted by law.

3. The notice of issues shall include the following:

a. The specific allegations(s) that form the basis of the county department's substantiated finding that the appellant was responsible for mistreatment of an at-risk adult;

b. The specific type of mistreatment for which the appellant was substantiated and the legal authority supporting the finding, and c. To the extent that the State Department determines that the facts contained in CAPS support a modification of the type and/or severity level of mistreatment determined by the county department, the State Department shall so notify the county department and the appellant of that modification and the process shall proceed on the modified type of mistreatment.

4. The appellant shall respond to the State Department's notice of issues by providing the factual and legal basis supporting the appeal to the State Department and to the Office of Administrative Courts.

5. If the appellant fails to participate in the scheduling conference referenced above, or fails to submit a response to the State Department's notice of issues within 14 days, the Office of Administrative Courts shall deem the appeal to have been abandoned by the appellant and render an initial decision dismissing the appeal. In accordance with the procedures set forth below, the Office of Appeals may reinstate the appeal for good cause shown by the appellant.

6. In the event that either party fails to respond to a motion to dismiss filed in the appeal, the Administrative Law Judge shall not consider the motion to be confessed and shall render a decision based on the merits of the motion.

B. The Administrative Law Judge shall conduct the appeal in accordance with the Administrative

Procedure Act, Section 24-4-105, C.R.S. the rights of the parties include:

1. The State Department shall have the burden of proof to establish the facts by a preponderance of the evidence and that the facts support the conclusion that the appellant is responsible for the mistreatment indicated in the notice of issues provided by the State Department. The Administrative Law Judge can consider evidence other than the case record in CAPS in concluding that the finding is supported by a preponderance of evidence;

2. Each party shall have the right to present his or her case or defense by oral and documentary evidence, to submit rebuttal evidence and to conduct cross-examination;

3. Subject to these rights and requirements, where a hearing will be expedited and the interests of the parties will not be subsequently prejudiced thereby, the Administrative Law Judge may receive all or part of the evidence in written form, or by oral stipulations;

4. A telephonic hearing may be conducted as an alternative to a face-to-face hearing unless either party requests a face-to-face hearing in writing. The written request for a face-to-face hearing must be filed with the Office of Administrative Courts and the other party at least ten (10) calendar days before the scheduled hearing. A request for a face-to-face hearing may necessitate the re-setting of the hearing; and,

5. Where facilities exist that have videoconferencing technology local to the county department that made the finding, either party may request that the hearing be conducted via that technology. The requesting party shall investigate the feasibility of this approach and shall submit a written request outlining the arrangements that could be made for video conference. The Office of Administrative Courts shall hold the hearing via videoconferencing for the convenience of the parties whenever requested and feasible. A request for a hearing via videoconferencing may necessitate the re-setting of the hearing.

C. At the conclusion of the hearing, unless the Administrative Law Judge allows additional time to submit documentation, the Administrative Law Judge shall take the matter under advisement. After considering all the relevant evidence presented by the parties, the Administrative Law Judge shall render an initial decision for review by the Colorado Department of Human Services, Office of Appeals.

D. The initial decision shall uphold, modify or overturn/reverse the county finding. The Administrative Law Judge shall have the authority to modify the type and/or severity level of mistreatment to meet the evidence provided at the hearing. The Administrative Law Judge shall not order the county to modify its record; rather, the State Department shall indicate the outcome of the appeal in its portion of CAPS.

E. When an appellant fails to appear at a duly scheduled hearing having been given proper notice, without having given timely advance notice to the Office of Administrative Courts of acceptable good cause for inability to appear at the hearing at the time, date and place specified in the notice of hearing, then the appeal shall be considered abandoned and the Administrative Law Judge shall enter an initial decision dismissing the appeal. In accordance with the procedures set forth in Section 30.940, the Office of Appeals may reinstate the appeal for good cause shown by the appellant.

¹Section 26-3.1-111(5)(h), C.R.S., refers to a health oversight agency defined in federal regulation at 42 CFR 164.501. This appears to be a typographical error as no such regulation exists. The definition for health oversight agency can be found at 45 CFR 164.501.

Notes

12 CCR 2518-1-30.930

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