7 CCR 1103-7-6 - [Effective until 4/1/2024] Appeal

6.1 Any party to the claim may appeal the Division's determination.

6.1.1 Parties are encouraged, though not required, to use the Division's appeal form. A valid appeal is a written statement that is timely filed with the Division, explains the clear error in the determination that is the basis for the appeal, is not frivolous, and has been signed by the party or the party's authorized representative. An appeal is frivolous if it fails to allege an error that could result in the reversal or modification of the determination or otherwise is manifestly insufficient or futile.

6.1.2 No appeal will be heard and no hearing will be held unless the appeal is received by the Division within thirty-five calendar days of the date the determination is sent. It is the responsibility of the party filing the appeal to ensure the appeal is received by the Division within the thirty-five day filing deadline.

6.1.3 Upon receipt of the appeal, the Division will notify the parties of the date of the hearing and any interim deadlines via U.S. postal mail, electronic means, or personal delivery.

6.1.4 Upon receipt of the appeal, the Division will send a copy of the appeal and a copy of the record of its investigation to the parties via U.S. postal mail, electronic means, or personal delivery. All evidence submitted to the Division as part of the investigation is part of the record on appeal and need not be resubmitted.

6.1.5 The filing of an appeal does not, except to the extent that a stay is granted, toll any deadlines applicable under, or triggered by the issuance of, the determination, decision, or order being appealed.

6.2 Parties who timely file a valid appeal of the Division's determination will be afforded an administrative appeal hearing before a Division hearing officer, unless the hearing officer finds, based on pre-hearing submissions, that the appeal presents no issues warranting a live hearing, and gives the parties notice and opportunity to be heard as to whether a hearing is warranted. Parties may appear by telephone.

6.3 The parties may submit new testimonial evidence to the hearing officer in accordance with deadlines imposed by the Division. The parties may submit new documentary or other non-testimonial evidence in accordance with deadlines imposed by the Division and upon showing "good cause," which may be assessed based on any relevant factors, including but not limited to:

6.3.1 That the new evidence was previously not known or obtainable, despite diligent evidence-gathering efforts by the party offering the new evidence;

6.3.2 That the party failed to receive fair notice of the investigation or of a key filing by another party or by the Division to which the new evidence is responsive;

6.3.3 That factors outside the control of the party prevented a timely action or interfered with the opportunity to act, except that the acts and omissions of a party's authorized representative are considered the acts and omissions of the party and are not considered to be a factor outside the party's control as intended by this rule;

6.3.4 That a determination raised a new issue or argument that cannot be responded to adequately without the new evidence;

6.3.5 That, at the investigation stage, the party offering new evidence requested more time to submit evidence, yet was denied, and in the hearing officer's judgment (a) the need for more time was legitimate and did not reflect neglect by the party, (b) the denial of the request for more time was unwarranted, and (c) exclusion of the evidence would cause substantial injustice to the party; and/or

6.3.6 That failure to admit the evidence otherwise would cause substantial injustice and did not arise from neglect by the party.

6.4 New evidence must be sent to all other parties to the appeal. Failure to send all new evidence to all other parties to the appeal may result in the evidence being excluded from the record.

6.5 If the party who filed the appeal does not participate in the hearing, the appeal may be dismissed.

6.6 All testimony at a hearing must be recorded by the Division but need not be transcribed unless the hearing officer's decision is appealed.

6.7 The hearing officer may, upon the application of any party or on his or her own motion, convene a prehearing conference to discuss the issues on appeal, the evidence to be presented, and any other relevant matters that may simplify further proceedings.

6.8 The hearing officer will decide whether the Division's determination is based on a clear error of fact or law.

6.9 The hearing officer shall not engage in ex parte communication with any party to an appeal.

6.10 An appeal may, in the discretion of the hearing officer, be sequenced and/or divided into two or more stages on discrete questions of liability and/or relief (e.g., bifurcation), yielding two or more decisions and/or phases of the appeal.

6.11 The hearing officer's decision constitutes a final agency action pursuant to C.R.S. § 24-4-106. The Division shall promptly provide all parties with a copy of the hearing officer's decision via U.S. postal mail, electronic means, or personal delivery. The Division shall notify the parties of their appeal rights pursuant to C.R.S. § 8-4-111.5(5).

Notes

7 CCR 1103-7-6