3.609.1
Notice
A. Each client of Colorado Works shall
receive prior written notice of any agency action affecting his or her
eligibility for or receipt of grant payments.
1. The client shall be notified in writing of
county department approval of:
a. An
application for Colorado Works.
b.
Any change in the amount of grant payment.
c. The right to a county conference and/or
state level fair hearing if the client is dissatisfied with the effective date
of eligibility, or the amount or type of assistance authorized.
2. A client shall be given notice
of any action by the county department, or any person or agency acting on its
behalf, which adversely affects the client's eligibility for, or right to grant
payments authorized under the Colorado Works program. Failure to give notice of
an adverse action shall be grounds for setting aside the action on appeal. The
notice must meet the following standards:
a.
The notice must be in writing; and,
b. It must describe clearly and in plain
language the action to be taken and the reason(s) for the action;
and,
c. It must refer by number to
the section(s) of the state department's rules that require or permit the
action being taken, or cite the specific changes in federal or state law
requiring the action; and,
d. It
must state the effective date of the proposed action; and,
e. It must explain the client's right to
request a county conference and/or state level fair hearing, the time period
for requesting a conference or hearing, and the steps which must be taken to
obtain a conference or hearing; and,
f. It must explain the client's right to
continued grant payments and the obligation to repay if it is determined that
the client was not eligible to receive them; and,
g. It must inform the client of his or her
right to be represented or assisted by legal counsel, a relative, a friend, or
a spokesperson of his or her choosing; and,
h. To the extent practicable, notice shall be
in his or her primary language. If he or she is illiterate, the action shall
also be explained verbally.
B. The county department shall notify a
client of any change from his or her prior grant payment amount, the reason for
the action, and the date the action becomes effective in writing.
C. Clients shall receive written timely
notice, giving at least eleven (11) calendar days advance notice before any
adverse action taken during the certification period, becomes effective, except
as specified in section 3.609.7.C . The notice shall explain the reason for the
proposed action and the date the action becomes effective.
1. When acting on a change, if the eleven
(11) calendar day timely notice period can be given within the month the
written timely notice is sent, the change will become effective the first day
of the following month.
2. If the
11 calendar day timely notice period concludes in the following month, the
change shall become effective the first day of the month after which the timely
notice period concluded.
3. If the
timely notice period ends on a weekend or holiday and a request for a state
level fair hearing and continuation of grant payments is received the first
business day after the timely notice period, the request shall be considered
timely received.
4. Colorado Works
grant payments must be discontinued or reduced after thirty-one (31) calendar
days in the following situations:
a. The
client's income exceeds the grant standard, after application of
disregards.
b. All eligible
dependent children in the assistance unit no longer meet the definition of
living in the home.
c. A dependent
child(ren) in the assistance unit no longer meet the definition of living in
the home and Colorado Works is requested for the child(ren) by another
caretaker.
d. An adult member of
the assistance unit leaves the home and requests assistance in a new assistance
unit.
e. All members of the
assistance unit leave the state of Colorado to reside in another state or
country.
f. An eighteen-year-old
who is the only dependent child graduates from high school or stops attending
school.
The thirty-one (31) day count begins on the first day of the
month following the month in which the change occurred. Colorado Works benefits
will be discontinued on the first day of the month following the month in which
the thirty-first (31st) day falls.
An individual may be removed from the assistance unit
according to D below, and prior to thirty-one (31) calendar days, when the
change described in this section occurs simultaneously with a change in which
adequate notice, not timely notice, is required.
D. Adequate notice, not timely
notice, is required in the following situations:
1. When facts indicate an overpayment because
of probable fraud or an intentional program violation and such facts have been
verified to the extent possible, prior notice shall be mailed at least five (5)
calendar days before the proposed effective date.
2. The client has died.
3. An adult member of the assistance unit
formally requests for benefits to stop for themselves in their original
assistance unit, or a caretaker who remains a part of the original assistance
unit requests that they stop receiving benefits for another member who has left
the home.
4. When an adult member
of the assistance unit who is not the head of household requests for benefits
to stop for themselves and their child(ren) when that adult makes a declaration
that they have left the home due to domestic violence.
5. The client begins receiving Title-IV of
the Social Security Act funds from another source such as foster care/ Title-IV
kinship/adoption subsidies.
6. The
client begins receiving benefits under another public assistance program which
may not be received concurrently with a Colorado Works grant, such as
Supplemental Security Income or Adult Financial programs.
7. At application or redetermination, when a
certification period has not yet been set.
8. An adult member of the assistance unit has
already received sixty months of assistance and a hardship extension has not
been granted.
E. If the
client's change in circumstances requires a reduction or termination of grant
payments, the following action will be required:
1. Send a written timely or adequate notice,
according to subsections C. and D., above.
2. If a client requests a county conference,
conduct the county conference as specified in section 3.609.6 . If a client is
dissatisfied with the results of the county conference and requests a state
level fair hearing before an Administrative Law Judge, such a request shall be
in accordance with section 3.609.7 . If a client does not request a county
conference and only requests a state level fair hearing any time prior to the
effective date of the timely notice, and the certification period has not
expired, the client's grant payments shall be continued on the basis authorized
immediately prior to the timely notice. Continued grant payments shall not be
issued for a period beyond the end of the current certification period. Grant
payments shall be continued until a final decision has been made by the Office
Of Appeals or until the certification period ends, whichever occurs first. The
county department shall explain to the client that repayment will be required
for the amount of any grant payments determined by the hearing officer to have
been overpaid or the continued grant payments to which the client was not
eligible to receive.
3. If the
certification period expires before the hearing process is completed, the
client may reapply for benefits.
4.
If the client does not appeal the timely notice to decrease or terminate grant
payments within the timely notice period, the changes shall be made in
accordance with timeframes outlined in section 3.609.1.
3.609.2
Payments
A. A client shall be placed on an issuance
schedule so that he or she receives grant payments on or about the same date
each month once a certification period is established. Due to the effective
date of eligibility, the date on which a client receives his or her initial
payment need not be the date that the client must receive any subsequent
payments.
1. Initial payment
The initial payment to eligible clients shall include
assistance beginning with the date of application. Should the assistance unit
be ineligible on the date of application, but become eligible prior to the time
that a determination of eligibility is made, the initial payment shall include
assistance beginning with the date on which the assistance unit became
eligible.
To calculate partial month payments:
a. Determine the grant amount based on the
size and composition of the assistance unit;
b. Deduct the total net countable income -
this is the authorized grant amount for the entire month;
c. Determine the number of days for which
payment is made and based on the table in subsection E. Below, find the decimal
figure corresponding to the number of days of eligibility;
d. Multiply the authorized grant amount for
the entire month by such decimal figure to determine the authorized grant
amount for the partial month;
e.
Subtract from authorized grant amount for the partial month any appropriate
deductions, unless the authorized grant for the partial month is less than $10,
in which case no payment is made. However, if the deductions from the
authorized grant amount for the partial month results in an amount less than
$10, such lesser amount shall be paid except when the amount is less than
$1.00.
To calculate the partial month payments, the following table
shall be used:
Days
|
Standard
|
Days
|
Standard
|
Days
|
Standard
|
1
|
.03288
|
11
|
.36164
|
21
|
.69041
|
2
|
.06575
|
12
|
.39452
|
22
|
.72329
|
3
|
.09863
|
13
|
.42739
|
23
|
.75617
|
4
|
.13151
|
14
|
.46027
|
24
|
.78904
|
5
|
.16439
|
15
|
.49315
|
25
|
.82192
|
6
|
.19726
|
16
|
.52603
|
26
|
.85480
|
7
|
.23014
|
17
|
.55890
|
27
|
.88768
|
8
|
.26302
|
18
|
.59178
|
28
|
.92054
|
9
|
.29590
|
19
|
.62466
|
29
|
.95342
|
10
|
.32876
|
20
|
.65754
|
30
|
.9863
|
2. Payment determination
For the certification period, eligibility and payment shall
be determined prospectively.
B. When the county department determines that
a client was ineligible for all or a part of a grant payment that the client
has already received, the county department shall, subject to notice as
described in 3.609.1 and these recovery rules, establish a claim, and if valid,
initiate recovery.
C. If a client
dies, payments to the client shall be treated as follows:
1. A client's eligibility shall end on the
date of his or her death.
2. If a
client dies before 12:00 a.m. on the first day of a month, no eligibility for a
grant payment for the following month exists.
3. If a client dies on or after 12:00 a.m. on
the first day of a month, any payment to which the person was eligible shall be
maintained for release to the client's personal representative as defined in
section
15-10-201(39),
C.R.S., for a maximum of three (3) months. The following rules apply when a
personal representative requests to receive a deceased client's last grant
payment:
a. The individual claiming to be the
personal representative of the deceased client must provide the court-issued
letters described in section
15-12-103, C.R.S. to the county
department in order to receive the deceased client's last grant payment; or
b. If the personal representative
with court-issued letters presents a court order ordering the county department
to pay the deceased client's last grant payment to a specific person or entity,
the county department shall make the last grant payment payable to the person
named in the order.
D. All payments, including partial payments,
shall have any cents dropped to the nearest dollar.
E. The client has the right to decide how to
use his or her grant payment. The county department shall not:
1. Impose any restriction, either direct or
implied, on a client's use of his or her grant payment including, but not
limited to, requesting a client to provide receipts or proof of how the money
has been spent; or
2. Require the
client to account for the use of the grant payment, except for the Electronic
Benefits Transfer (EBT) card point of sale limitations listed in
26-2-104(2),
C.R.S.; or,
3. Give assistance to
creditors in the collection of the client's debts.
F. County departments shall not hold or delay
the client's grant payment beyond the regular issuance date except when:
1. A final agency decision has been made
authorizing the action;
2. In cases
where a corrected payment is to be issued, the corrected payment shall be
issued by the effective date of the original warrant and the incorrect payment
shall be cancelled.
3. When the
county department receives reliable information that the client no longer
resides at the last known address and attempts to locate the person through the
post office, relatives, friends, etc., have been unsuccessful, the client's
grant payment shall be discontinued. Discontinuing the grant payment is an
adverse action and notice shall be given following the policies outlined in
section 3.609.1.C . If the client contacts the county department before grant
payments are discontinued and provides the client's current address and all
other eligibility criterion have been met, the client shall receive the grant
payments they are eligible for;
4.
Any grant payments issued to an Electronic Benefits Transfer (EBT) card and not
accessed within two hundred seventy-four (274) days of issuance shall be
expunged. The county shall reissue grant payments within 90 days of the
expungement if requested by the client verbally, electronically, in person, or
in writing. The county may reissue up to twelve (12) months of expunged grant
payments.
G. The county
department shall take prompt action to correct underpayments to clients of
Colorado Works grant payments. There are two types of underpayments:
1) grant payment(s) received by or for a
client that is less than the amount which the client should have received but
not a denial or termination, or
2)
the failure of the county department to issue a grant payment to an eligible
client when such payment should have been issued (i.e., denials or termination
of Colorado Works grant payments).
1. When a
county department becomes aware of a potential underpayment, the county
department shall:
a. Determine if an
underpayment occurred; and,
b.
Record the facts and basis of its determination in the case record.
2. A county shall correct any
underpayments by the month following the discovery of such
underpayments.
3. Underpayments
shall be used to pay any validated claims against the client unless the county
department has determined this action will cause an undue hardship to the
client as determined on a case-by-case basis. Underpayments will be applied to
claims using the following hierarchy:
a.
Fraud or intentional program violation (IPV) claims first (undue hardship
cannot be granted);
b. Client error
claims second; and
c.
Administrative error claims last. Instances that may result in an
administrative error claim include, but are not limited to, the following:
1) The county failed to take timely action on
a change reported by the client.
2)
The county incorrectly computed the client's income or other information, or
otherwise gave an incorrect grant payment.
3) Any other situation not caused by willful
withholding of information on the part of the client and/or their authorized
representative.
4) If an
underpayment is discovered by the county department, the county department
shall inform the client in writing of its determination of the
underpayment.
5) Prompt action
shall be taken to correct underpayments that occurred within the past twelve
(12) months from the discovery date by issuing a retroactive payment.
Retroactive payments shall not be made unless the amount is one dollar ($1.00)
or more.
H. The county department shall reissue a lost
or stolen payment if the loss or theft is not questionable and the county
determines that such loss was beyond the client's control.
A loss will be considered within the client's control
when:
1. The client has shared the EBT
pin number or written the pin number on the EBT card itself, or
2. The client has given his or her card to
another person for that person's use.
J. A client is prohibited from using or
allowing the use of his or her EBT card at automated teller machines (ATMs) and
point of sale (POS) devices located in establishments as described in section
3.602.1.E.2.k.
A client's transactions shall be monitored quarterly. Clients
who use prohibited ATMs or POS devices (misuse) shall be contacted by the
county department. Misuse shall result in:
1. A written warning that the use of the EBT
card in prohibited establishments will result in the card being disabled. The
county department shall provide education about appropriate use, access, and
alternatives;
2. If continued
misuse occurs (identified on the usage report after a warning has occurred),
the cash portion of his or her EBT card shall be disabled for one month,
requiring the county to inform the client of additional options for receipt of
payment (direct deposit or county warrant) as well as notification of the
dispute resolution process in accordance with state rules pursuant to section
3.609.6;
3. If misuse continues,
the county department shall deny or discontinue the cash benefit for one month.
The county shall require the client to complete a new application after the
one-month time period if the client requests assistance. The county department
shall not accept a new application from the client until the one-month denial
or discontinuance expires. The county department shall follow the dispute
resolution process pursuant to section 3.609.6; and,
4. After the one-month case closure for
continued misuse, if/when the client reapplies, any future EBT card usage at
prohibited establishments shall be considered continued misuse. Such subsequent
violations will result in the one-month denial/discontinuance and reapplication
process referred to in subsection 3, above.
3.609.3
Overpayments
The county department shall establish a claim on an
overpayment before the last day of the quarter following the quarter in which
the overpayment was discovered.
A. An
overpayment claim shall be adjusted if there is a record of any underpayment(s)
for a prior period. Any underpayment must be applied to the overpayments in the
following hierarchy:
1. Fraud or IPV claims
first,
2. Client error claims
second; and,
3. Administrative
error claims last.
B.
Liability for an overpayment must be legally established. Methods for legally
establishing an overpayment include but are not limited to:
1. An executed promissory note;
2. A court judgment;
3. A final agency action; or
4. A signed public assistance repayment
agreement form.
The state department's public assistance repayment agreement
form shall be provided to the client once an overpayment claim is
established.
C.
Failure to sign the public assistance repayment agreement form shall be handled
as follows:
1. If the client against whom a
recovery has been initiated is currently participating in the Colorado Works
program and does not respond to the public assistance repayment agreement form
within eleven (11) calendar days of the date the notice containing the public
assistance repayment form is mailed, grant payment reduction shall begin with
the first month following the timely noticing period without further
notice.
2. If the client against
whom a recovery has been initiated is not participating in the program when a
recovery for a claim is initiated or if a recovery has been initiated for
repayment of a claim and no response is made to the public assistance repayment
agreement form within eleven (11) calendar days of the date the notice is
mailed, the county department shall pursue all legal recovery methods in order
to recover the overpayment. Legal remedies include, but are not limited to,
judgments, garnishments, claims on estates and the state income tax refund
intercept process.
D.
The amount of the overpayments involving income shall be calculated to allow
for income disregards described in section 3.606.2.
E. All earned and unearned income received by
the client are taken into consideration in the computation.
In the instances where the overpayment is the direct result
of actions tied to the determination of IPV and/or fraud, which resulted in
receipt of grant payments in error, or grant payments received that the client
was not eligible to receive, the overpaid grant payments shall be recovered
from the client and/or a liable individual.
F. The calculation of overpayment shall begin
in the month that the overpayment occurred.
1. Start with the amount issued to the
client;
2. Determine the correct
payment;
3. Compare the amount
issued to the client to the correct payment amount.
a. If the amount issued to the client is
greater than the correct payment amount, the difference is the overpayment
amount.
b. If the amount issued to
the client is less than the correct payment amount, the difference is the
underpayment amount; follow the procedures for underpayment in section
3.609.2.G.
4. If a
client does not meet the non-financial eligibility requirements in any month,
the client is totally ineligible for the month. Any payment received in such
month(s) is an overpayment.
G. When the county department has determined
that a client has received an overpayment, the department shall:
1. Take action to research the overpayment
and determine the amount of the overpayment.
2. Determine if the overpayment is to be
recovered.
3. Document the facts
and situation that produced the overpayment. Document whether the overpayment
is to be recovered. Retain all associated documentation and notices until the
overpayment is repaid in full.
4.
Determine whether there was willful withholding of information, fraud, or
IPV.
5. Provide the client with
timely or adequate notice as required by section 3.609.1 of the amount due and
the reason for the recovery including:
a. The
liable individual(s) responsible for the repayment;
b. The amount of the claim;
c. The period the claim is for;
d. The reason for the overpayment including
whether the overpayment is a result of fraud/IPV, client error, or
administrative error;
e. The
client's rights and responsibilities;
f. The method of repayment;
g. How to obtain free legal
assistance;
h. The applicable rules
concerning the overpayment; and
i.
Provide the public assistance repayment form.
6. Send quarterly statements with the balance
due.
3.609.4
Recovery
A. The recovery of
valid overpayments is required regardless of when the overpayment occurred.
Overpayments may be recovered from the client who was overpaid or who
fraudulently received the assistance payment or another liable individual.
If a client is deceased, overpayments shall be recovered from
the deceased client's estate.
B. The following rules for recovery do not
apply in instances where the state or county department seeks recovery in a
case that was transferred to the district attorney and prosecuted through the
courts:
1. The client shall be notified of the
recovery action to be taken, using the notice rules found at section
3.609.1.
2. When the overpayment is
caused by an unintentional error, the client's willful withholding or an
administrative error, such overpayment shall be deducted, after notice has been
given, from subsequent grant payments while the client is actively receiving
Colorado Works grant payments.
a. The client
may choose to repay the county department the entire amount of the overpayment
at one time. The client shall work with the county department to determine how
a lump sum repayment can be made.
b. When the recovery amount is not to be
repaid in a single payment per subsection a above, and the case remains active,
the county department shall establish a monthly recovery deduction from
subsequent grant payments. The monthly rate of recovery shall be ten dollars or
ten percent of the assistance payment, whichever is higher.
The following procedure shall be used to arrive at the
monthly recovery deduction amount:
1)
If the error is a result of an agency error and the client does not meet
criteria set forth in section 3.609.4.L, compute ten percent (10%) of the
Colorado Works grant payment amount. If the resulting percentage amount is less
than ten dollars ($10), the deduction from the grant payment amount shall be
ten dollars ($10).
2) Deduct the
percentage amount or ten dollars ($10), whichever is higher, from the grant
payment. The result shall be rounded to the next lower whole dollar amount, if
not already a whole dollar amount. This rounded amount is the final payment
amount.
3) When the authorized
payment amount is less than ten dollars ($10), the case is considered a "no
payment" case and no deduction shall be made.
4) When the recovery is due to a fraudulent
action on the part of the client and interest may be added thereto, the
interest amount shall not be included in the grant payment deduction unless the
client agrees to such inclusion. If the client does not so agree, the interest
amount shall be collected separately.
5) The amount of the grant payment deduction
for recovery shall be recorded in the client's case file and collected via the
statewide automated system.
c. The county department shall not establish
a claim unless the amount of the claim is greater than $200, except in the
following circumstances:
1) The overpayment is
identified through a federal or state level quality control review;
or,
2) The claim is being pursued
as and results in an IPV.
3. When the overpayment is caused by an
unintentional error, the client's willful withholding of information or an
administrative error, and the Colorado Works case is no longer active, recovery
of such overpayment shall be based upon the public assistance repayment
agreement form or other methods of recovery.
a. The county shall establish a monthly
repayment agreement with a former client. The repayment agreement shall not
exceed twenty-five percent (25%) of available monthly income. Determination of
the repayment amount must be clearly documented in the electronic case
file.
b. The client may choose to
repay the county department the entire amount of the overpayment at one time.
The client shall work with the county department to determine how a lump sum
repayment can be made.
c. The
county department may write-off unpaid valid claims as follows:
1) Valid administrative error claims less
than one hundred twenty-five dollars ($125.00) can be written off ninety (90)
days after the termination of all public assistance.
2) Valid claims for client error, fraud, and
IPV less than three hundred dollars ($300.00).
3) Any unpaid valid claim of $125 or more for
an individual who was not convicted of an IPV or fraud specific to the
overpayment, is no longer receiving public assistance, and the overpayment was
established six (6) or more years ago, and the county department has determined
that it is no longer cost effective to pursue collection.
4) Once written off, a claim is not subject
to recovery.
d. If the
client begins to receive Colorado Works grant payments again after the
overpayment has been established and still has a claim balance, the deduction
of grant payments shall occur as described in section 3.609.5.
C. The client may issue
the state a refund of any overpaid grant payments from his or her existing
balance of Colorado Works grant payments on his or her electronic benefits
transfer (EBT) card by contacting the county department. This requires a
written statement from the client.
D. Clients are not entitled to grant payments
that were paid in error or mistakenly provided to the client based on a data
entry error into the statewide automated system or an error resulting from the
statewide automated system. The county shall create a claim and may retrieve
the grant payments from the client's EBT card within twenty-four (24) hours of
the issuance without prior written authorization by the client. The client
shall have no appeal rights in relation to this grant payment because he or she
was not eligible for the initial receipt of the grant payment(s) in the first
instance.
When grant payments issued in error are not retrieved from
the client's EBT card within twenty-four (24) hours, funds shall not be taken
from the card using this method unless permission is granted from the client in
writing using the state prescribed form. If permission is not granted, the
county department shall pursue other methods of recovery.
E. The client may request voluntary
deductions be applied to the overpayment. These are considered to be an amount
in addition to the deduction from the grant payment as established through the
recovery calculations. The client shall be provided written confirmation of the
amount to be deducted and that he or she has the right to stop the voluntary
deduction at any time by written request.
F. A claim may be filed against the estate of
a client for overpayment. This includes cases where overpayments were made and
not recovered. The county department's legal advisor must be consulted in
determining the amount of assistance payments for which a claim is to be
filed.
G. In accordance with
sections
26-2-133 and
39-21-108, C.R.S., the State and
county departments may recover overpayments of public or medical assistance
benefits through the offset (intercept) of a taxpayer's state income tax
refund. Tax refunds shall not be offset in instances where the taxpayer is
making regular, ongoing payments as agreed to in the public assistance
repayment agreement and/or based on arrangements between the taxpayer and the
county(ies). Unless agreed to by the client, the county shall not offset tax
refunds during the same month the client makes a payment on a claim if the
payment agreement was established prior to the offset. Rent rebates are subject
to the offset procedure.
The offset of the taxpayer state income tax refund and/or
rent rebate may be used to recover overpayments that have been:
1. Determined by final agency action;
or,
2. Ordered by a court as
restitution; or,
3. Reduced to
judgment.
H. Prior to
certifying the taxpayer's name and other information to the Colorado Department
of Revenue, the Colorado Department of Human Services shall notify the
taxpayer, in writing at his or her last-known address, that the State intends
to use the tax refund offset to recover the overpayment. In addition to the
requirements of section
26-2-133(2),
C.R.S., the pre-offset notice shall include the name of the county department
claiming the overpayment, the program that made the overpayment, and the
current balance owed.
I. Effective
August 1, 1991, the taxpayer is entitled to object to the offset by filing a
request for a county conference or state level fair hearing within thirty (30)
calendar days from the date that the state department mails its pre-offset
notice to the taxpayer. In all other respects, the procedures applicable to
such hearings shall be those that are stated in section 3.609.7 . At the
hearing on the offset, the county department or ALJ shall not consider whether
an overpayment has occurred because overpayment has already been otherwise
legally established, but may consider the following issues if raised by the
taxpayer in his or her request for a hearing:
1. Whether the taxpayer was properly notified
of the overpayment;
2. Whether the
taxpayer is the person who owes the overpayment;
3. Whether the amount of the overpayment has
been paid or is incorrect;
4.
Whether the debt created by the overpayment has been discharged through
bankruptcy; or,
5. Whether other
special circumstances exist, (i.e., facts that show that the taxpayer was
without fault in creating the overpayment and will incur financial hardship if
the income tax refund is offset).
J. If a tax refund offset is established, an
overpayment shall not be recovered using another method in the month the offset
occurs unless prior authorization is received from the individual making the
recovery payments.
K. The county
department is required to pursue collection of the overpayment from the
client/responsible payee who managed and administered the Colorado Works funds.
The county department shall pursue all available overpayment recovery options
to collect the overpayment from the client/responsible payee first and then any
other liable individuals legally responsible for overpayments, unless otherwise
specified.
1. In instances where a trustee
has used a client's trust income or property in a manner contrary to the terms
of the trust, the county department shall:
a.
Determine whether an overpayment of Colorado Works grant payments has occurred
as a result of the client's loss of income based on the trustee's improper
actions;
b. Consult with the county
attorney or other legal resource to determine how to pursue action against a
trust/trustee;
c. Advise the
trustee of the overpayment circumstances; and d. If the trustee disagrees with
such circumstances and overpayment, pursue the recovery establishment and
collection through appropriate legal means; or e. Take appropriate steps to
secure repayment with the cooperation of the trustee; or,
f. Report such behavior or action by the
trustee to the county protective services to ensure the protection of the
client's rights in the trust.
2. In instances where a power of attorney has
used his or her legal authority for purposes other than for the benefit of the
client, the county department shall:
a.
Determine whether an overpayment of Colorado Works grant payments has occurred
as a result of the power of attorney's improper actions;
b. Consult with the county attorney or other
legal resource to determine how to pursue action against a power of
attorney;
c. Advise the holder of
the power of attorney of the overpayment circumstances; and,
d. If the holder of the power of attorney
disagrees with such circumstances and overpayment, pursue the recovery
establishment and collection through appropriate legal means; or
e. Take appropriate steps to secure
repayment with the cooperation of the holder of the power of attorney;
or
f. Report such behavior or
action by the trustee to the county protective services to ensure the
protection of the client's rights and benefits.
L. In any case in which an overpayment has
been made, there shall be no recovery from any person:
1. Who is without fault in the creation of
the overpayment; and,
2. Who has
reported any increase in income or other circumstances affecting the client's
eligibility within the timely reporting requirements for the program;
and,
3. Who would be deprived of
income required for ordinary and necessary living expenses such that it would
be against equity and good conscience to seek recovery. The fact that the
client is receiving public assistance shall not be the only factor in making a
determination that the person would be deprived of income required for ordinary
and necessary living expenses and that equity and good conscience exist.
a. If a client has ten (10) percent or more
of income remaining after necessary living expenses, he or she shall not be
considered deprived of income.
b.
If a client's expenses exceed his or her income, additional questions must be
asked to determine how he or she is meeting expenses to ascertain if other
income (i.e. gift, in-kind) needs to be included in the income
calculation.
M. When the overpayment recovery is not
pursued, such fact, together with the reason, shall be documented in the
statewide automated system. All information pertaining to the reason,
establishment, and collection of claims shall be retained in the case record
until the claim is written off or paid in full.
3.609.5
Intentional Program Violation
(IPV) and Fraud
A. All clients must be
provided with their rights in relation to IPV as follows:
1. The client has the right to an
administrative disqualification hearing (ADH) before an administrative law
judge (ALJ).
2. The county
department may offer an ADH at the county. This does not preclude the client
from requesting the initial ADH or a second ADH be held before an ALJ under
subsections M and O.
3. A client
may waive the right to an ADH, either before an ALJ or with the county
department, by signing a waiver of ADH form. Clients have a right to look at
all the evidence that would be used at an ADH before deciding whether to waive
the right to an ADH.
4. If a client
chooses to appear at the ADH he or she has the right to represent him or
herself or to be represented by an attorney at his or her expense.
5. The client may choose to be represented by
any other person he or she chooses pursuant to section
26-2-127(1)(a)(IV),
C.R.S.
6. A client and/or his or
her representative, upon providing a signed release, may look at his or her
case file, including all the evidence that will be used at the ADH. The client
and/or his or her representative has the right to look at his or her case file
before and during the ADH.
7. The
county department shall provide a free copy of the evidence to be utilized
during the ADH to the client at least fifteen (15) days prior to an ADH heard
by the county. Upon request, the county department will provide a free copy of
any other parts of the case file that the client determines is needed at the
ADH.
8. A client may bring
witnesses to speak on his or her behalf at the ADH.
9. The client and or his or her
representative has the right to question or deny any evidence or statements
made against him or her at the ADH. This includes the right to ask questions of
persons testifying against him or her.
10. The client has the right to present any
evidence that he or she feels is important to prove his or her case.
B. All Colorado Works clients must
be provided with a written notice of the penalties for an IPV on the
application form. All Colorado Works clients shall be notified of the penalties
for an IPV when reporting changes on the redetermination form.
C. A county department is required to refer
the investigation to the appropriate investigatory agency for any client or
representative payee whenever there is an allegation or reason to believe that
individual has committed an IPV as described below.
When conducting an interview for IPV and/or fraud, the county
department investigator or representative has the responsibility to ensure the
following:
1. That an explanation was
given to the individual regarding the reason the interview is taking place;
and,
2. That the individual's
rights have been provided to him or her (section 3.609.6.A); and,
3. That the individual's rights and
responsibilities including confidentiality of records and information, the
right to non-discrimination provisions, the right to a county conference, and
the right to a state level fair hearing have been provided to him or her;
and,
4. That the rights and
responsibilities presented in the "what I should know" section of the
application that the client acknowledged when he or she signed the application
form have not been violated; and,
5. That the county and/or representative of
the county shall not threaten the individual or engage in any other
intimidation tactics toward the client.
D. If the county receives questionable
information that is necessary for determining a client's eligibility and the
verification requested by the county department is not supplied by the client
as required by the county department's verification request timeframes (section
3.604.3), grant payments may be reduced and/or the case closed and grant
payments terminated for a client's failure to prove eligibility following the
notice policies outlined in section 3.609.1 . These actions and notification
shall not be used as an intimidation tactic or threat.
E. Following an investigation, the county
must take action on cases where documented evidence exists to show a client has
committed one or more acts of IPV. The county must take action through:
1. Obtaining a "waiver of administrative
disqualification hearing"; or,
2.
Proceeding with an ADH, either at the county department or in front of an ALJ,
or both as described in subsections M. and O. below; or,
3. Referring the case for civil or criminal
action in a county or district court; or,
4. Documenting in the case file the county
department's decision to take no action to pursue IPV using documented evidence
to support the decision.
5.
Establishing a claim based on the IPV, if appropriate.
F. In proceeding against a client who is
alleged to have committed an IPV, the county department must coordinate any
action with actions taken under the food assistance program where the factual
issues are the same or related.
G.
Overpayment actions shall be initiated in the statewide automated system within
ten (10) calendar days of the investigation's conclusion, unless otherwise
specified in the case file. This is required in all cases even if ADH
procedures or referral for prosecution is not initiated, except in instances
where notification of overpayments may prejudice the ongoing criminal case or
investigation. In these instances, the county department may make the
determination to postpone notification of claims to the client if the
overpayment is being referred to a court of appropriate jurisdiction. The
determination to postpone notification must be clearly documented in the case
file.
H. The state department will
not condone any actions of the county department that could be determined to be
a violation of state or federal law. Any actions taken by a county department
that is determined to be in violation of state or federal law may be subject to
corrective action per 9 C.C.R.
2501-1 section 1.150.
I. These rules apply to all clients who
commit an IPV who are recipients or representative payees of grant payments
and/or services. The determination of IPV shall be based on clear and
convincing evidence that demonstrates intent to commit IPV.
J. Supporting evidence warranting the pursuit
of an IPV disqualification must be documented and reviewed by a supervisor. If
the county department determines there is evidence to substantiate that a
person has committed an IPV, the person has a right to an ADH. However, the
county department shall allow that person the opportunity to waive the right to
an ADH.
1. The State approved IPV forms shall
be provided to the individual suspected of an IPV. These may be offered to the
individual during the investigation or mailed once it has been suspected an IPV
has occurred, but there is no plan to pursue criminal charges.
2. One of the state approved forms affords
the individual the right to waive the ADH. If the individual chooses to waive
his or her right to an ADH, the individual shall have fifteen (15) calendar
days from the date the IPV forms are hand-delivered or mailed by the county to
return the waiver. If the form is not returned, the county department shall
pursue an ADH.
3. The completion of
the waiver is voluntary and the county department may not require, nor by its
actions appear to require, the completion of the waiver.
K. An IPV ADH must be requested whenever:
1. The facts of the case do not warrant civil
or criminal prosecution;
2.
Documentary evidence exists to show an individual has committed one or more
acts of IPV; and
3. The individual
has failed to sign and return the waiver of ADH form.
L. An ADH may be requested against an accused
individual whose case is currently being referred for prosecution on a civil or
criminal action in county or district court.
M. A county department may conduct an ADH or
may use the Office of Administrative Courts (OAC) to conduct the ADH.
1. The individual may request verbally, in
writing, electronically, or in person that the OAC conduct the ADH in lieu of a
county ADH. Such an ADH must be requested ten (10) calendar days before the
scheduled date of the county ADH.
2. The OAC or the county department must mail
by certified mail, return receipt requested, a notice of the date of the ADH on
the form prescribed by the state department, to the individual alleged to have
committed an IPV. The notice must be mailed at least thirty (30) calendar days
prior to the ADH date, to the individual's last known address. The notice form
shall include a statement that the individual may waive the right to appear at
an ADH.
3. The ALJ or ADH officer
shall not enter a default judgment against the individual for failure to file a
written answer to the notice of hearing or failure to appear at the ADH, but
shall base the initial decision upon the evidence introduced at the
ADH.
4. The ADH must be continued
at the accused individual's request if good cause is shown. The request for
continuance must be received by the presiding ALJ or ADH officer at least ten
(10) calendar days prior to the ADH.
The ADH shall not be continued for more than a total of
thirty (30) calendar days from the original ADH date. One additional
continuance is permitted at the ADH officer or ALJ's discretion. If the ADH
officer or ALJ considers it necessary, a medical assessment may be ordered to
substantiate or disprove a good cause statement of an accused individual. Such
assessment shall be obtained at the agency's expense and made part of the
record.
5. In the event
that the ADH was heard by the county, the client may request an ADH to be heard
by the OAC within fifteen (15) calendar days of the date the county department
mails the local ADH decision to the client.
N. Disqualification for IPV shall be as
follows:
1. If the individual signs and
returns the request for waiver of ADH within fifteen (15) calendar days from
the date the waiver is sent, that person shall be provided with a notice of the
period of disqualification.
2. The
disqualification period shall begin no later than the first day of the
following month from the date determined through the ADH process or, if the
individual signed an ADH waiver, the date he or she signed the waiver.
a. Once the disqualification is imposed it
shall continue without interruption. To consider a disqualification period
served, the client shall have a break in grant payments totaling the time
period of the disqualification. The disqualification period shall remain in
effect unless and until the finding is reversed by the Office of Appeals or a
court of appropriate jurisdiction or until the period of disqualification is
served per section c below.
b. The
disqualification may be in addition to any other penalties which may be imposed
by a court of law for the same offenses (i.e. criminal or civil
sanctions).
c. The disqualification
shall be in effect for twelve (12) months upon the first occasion of any such
offense; twenty-four (24) months upon the second occasion of any such offense
and permanently upon the third such offense, pursuant to section
26-2-128(1),
C.R.S. all disqualifications imposed shall run and be served
consecutively.
3. The
disqualification penalizes only the individual(s) found to have committed an
IPV. If a client's spouse and/or sponsor(s) have received an IPV on his or her
own case(s), the spouse's and/or sponsor(s)' income and resources, when
applicable, will be considered available to the client and used for determining
eligibility.
4. An IPV
disqualification in one county is valid and effective in all other Colorado
counties. A county department shall consider a disqualification imposed by
another county department when determining the appropriate disqualification
penalty for the disqualified individual without an additional ADH or further
right to appeal.
O. If,
as a result of the ADH, the county ADH officer or ALJ finds the individual has
committed an
IPV, a written notice shall be provided to notify the
individual of the decision. The county hearing decision notice shall be a state
prescribed form, which includes a statement that a state ADH at the OAC may be
requested.
1. In the event that the
ADH was heard by the county, the client may appeal the decision of the county
ADH to the OAC. An appeal must be received by the county department or by the
OAC within fifteen (15) calendar days of the date the county department mails
the local ADH decision to the client. See section 3.609.7 for rules regulating
the appeal process.
2. A copy of
the county ADH decision shall be forwarded to the state department's employment
and benefits division for review at the same time the decision is mailed to the
client. If the client does not appeal the county ADH decision to the OAC, it
becomes an initial decision and if no response is sent by the employment and
benefits division to the county department, the county's decision becomes a
final decision. If the employment and benefits division disagrees with the
county department decision, they may: remand the decision to the county
department or require the county to send the ADH request to OAC for
determination of IPV, as described in M.5 above.
3. In an ADH before an ALJ, the determination
of IPV shall be an initial decision, which shall not be implemented while
pending state department review and a final agency decision. The initial
decision shall advise the client that failure to file exceptions to findings of
the initial decision will waive the right to seek judicial review of a final
agency decision under section
24-4-106, C.R.S. affirming the
initial decision.
4. When an
individual waives his or her right to an ADH, a written notice of the
disqualification penalty shall be mailed to the individual. This notice shall
be on a state prescribed notice form.
P. When the county department determines that
it has paid a client a grant payment as a result of fraud, the facts used in
the determination shall be reviewed with the department's legal counsel within
the attorney general's office and/or a representative from the district
attorney's office. If suspected fraud is substantiated by the available
evidence, the case shall be referred to the district attorney. All referrals to
the district attorney shall be made in writing and shall include the amount of
assistance fraudulently received by the client.
Q. If any deduction is being made from the
client's assistance payment it must be consistent with any court order
resulting from a prosecution by the district attorney. If the individual being
prosecuted is not a Colorado Works program client, another method of recovery
shall be used to collect amounts due to the department.
1. Interest shall be charged from the month
in which the overpayment was received until the date the overpayment is
recovered. Interest shall be calculated at the legal rate.
2. The client may choose to repay the county
department the entire amount of the overpayment at one time or establish a
repayment plan. In either instance, the fraud charge should be discussed with
the district attorney or appropriate investigative authority.
R. If the district attorney
declines to prosecute, the amount of overpayment due, as established by the
department, will continue to be recovered by deduction from subsequent grant
payments or other method of recovery if the individual is not a current client
of Colorado Works grant payments.
3.609.6
Dispute Resolution
The dispute resolution process is available for disputes
concerning county department actions related to eligibility, reduction of grant
payment amounts, redetermination procedures, and other county actions that do
not involve allegations of fraud or IPV on the part of the client. If there is
a dispute regarding fraud or IPV, that dispute must be handled according to
sections 3.609.1 and 3.609.5 regarding IPVs and fraud.
In order to resolve disputes between county departments and
clients, county departments shall adopt procedures for the resolution of
disputes consistent with this section. The procedures shall be designed to
establish a simple, non-adversarial format for the informal resolution of
disputes.
A. The county department,
prior to taking action to deny, terminate, recover, initiate vendor payments,
or modify financial assistance provided under the Colorado Works program to a
client, shall, at a minimum, provide the client an opportunity for a county
conference.
1. The right of a client to a
county conference is primarily to ensure that the proposed action is valid, to
protect the client against an erroneous action concerning grant payments, and
to ensure reasonable promptness of county action. The client may choose,
however, to bypass the county conference and appeal directly to the state
office of administrative courts, pursuant to section 3.609.7.
2. The client is entitled to:
a. Representation by an authorized
representative retained at his or her own expense, such as legal counsel,
relative, friend, or another spokesperson, or he or she may represent himself
or herself;
b. Examine the contents
of the case file and all documents and records used by the county department or
agency in making its decision. Examination of the file is available at a
reasonable time before the conference and during the conference. However, the
file shall not include names of confidential informants, privileged
communications between the county department and its attorney, or the nature
and status of pending criminal prosecutions and any other information that is
confidential or privileged under state or federal law; and c. Present new
information or documentation to support reversal or modification of the
proposed adverse action.
3. Failure of the client to request a county
conference within ninety (90) calendar days from the date timely notice of the
proposed action was mailed, absent the client requesting a postponement within
that same ninety (90) days, shall constitute abandonment of the right to a
conference. The client does not lose the right to appeal directly to the OAC
pursuant to section 3.609.7.
4.
Failure of the client to appear at the scheduled county conference without
making a request for postponement prior to the scheduled date of the conference
shall constitute abandonment of the right to a conference unless the client can
show good cause for his or her failure to appear. The client does not lose the
right to appeal directly to the OAC pursuant to section 3.609.7.
B. The county conference shall be
held before a person in the county department or agency where the proposed
decision is pending who was not directly involved in the initial determination
of the action in question. The county worker or contractor who initiated the
action in dispute shall not conduct the county conference.
1. The person designated to conduct the
conference shall be in a position which, based on knowledge, experience, and
training, would enable him or her to determine if the proposed action is valid.
This could include, but is not limited to, a supervisor, quality assurance
personnel, or a manager with no previous knowledge of the case.
2. Two or more county departments may
schedule a joint county conference related to the same client. If two or more
counties schedule a joint county conference, the location of the conference
need not be held in the county taking the action, and the conference location
shall be convenient to the client.
3. The county conference may be conducted
either in person, by telephone, or by video conference. A telephonic or video
conference must be agreed to by the client.
4. The county/agency worker or other county
or department employee or contractor shall attend the county conference and
present the factual basis for the disputed action.
5. The county conference shall be conducted
on an informal basis. The county department/agency must provide specific
reasons for the proposed action, and the applicable state department's rules or
county policy. In the event the client does not speak English or other language
services are needed, an interpreter shall be provided by the county
department/agency.
6. The
county/agency shall have available at the conference all pertinent documents
and records in the case file relevant to the specific action in
dispute.
7. To the extent possible,
the county conference shall be scheduled and conducted prior to grant payments
being reduced or terminated.
8. The
county department shall provide notice to the client at least four (4) days
prior to the scheduled time and location for the conference, or the time of the
scheduled telephone or video conference. Notice should be in writing. The
client may provide a written or verbal waiver that written notice of the
scheduled conference is not necessary when the county department is able to
conduct the conference within four (4) days.
9. The county department may consolidate a
client's disputes regarding the Colorado Works program, the food assistance
program, or any other public assistance program if the facts are similar and
consolidation would facilitate resolution of all disputes.
10. The goal of the county conference is to
reach an agreement between the client and the county department.
C. At the conclusion of the
conference, the person presiding shall summarize the discussion in writing. The
summary shall include whether the issue was resolved and include the client's
appeal rights as described in section 3.609.7. A copy of the written summary
shall be provided to the client and/or his or her representative within eleven
(11) calendar days. A copy of the summary will also be maintained in the
client's case file.
3.609.7
Appeal and State Level Fair
Hearing
A. These rules apply to all
state-level fair hearings of county department actions concerning assistance
payments and actions taken pursuant to state rules or official county policies
governing the Colorado Works program. An affected client who is dissatisfied
with a county department action or the result of a county conference or failure
to act concerning grant payments may appeal to the Office of Administrative
Courts (OAC) for a fair hearing before an independent Administrative Law Judge
(ALJ). This will be a full evidentiary hearing of all relevant and pertinent
facts to review the decision of the county department. The time limitations for
submitting a request for an appeal are:
1.
When the client elects to avail himself of a county conference, but is
dissatisfied with that decision, the request must be submitted in writing and
mailed or hand-delivered as described in subsection 3 below, within the ninety
(90) day period specified in 2, below;
2. When the client elects not to avail
himself of a county dispute resolution conference but wishes to appeal directly
to the state, a written request for an appeal must be mailed or hand-delivered
as described in 3 below no later than ninety (90) calendar days from the date
the notice of the proposed action was mailed to the client;
3. A request for an appeal must be mailed or
hand-delivered to the office of administrative courts. If the request is sent
to or mailed to the county department, the county shall forward such request to
the OAC.
B. Requests for
state hearings may result from such reasons as:
1. The opportunity to make application or
reapplication has been denied;
2.
An application for assistance or services has not been acted upon within the
maximum time period for the category of assistance;
3. The application for assistance has been
denied, the grant payment has been modified or discontinued, vendor payments
have been initiated, requested reconsideration or a grant payment amount deemed
incorrect has been refused or delayed, payment has been delayed through the
holding of payments, the county department is demanding repayment for any part
of a grant payment which the client does not believe is justified, or the
client disagrees with the type or level of benefits or services
provided.
C. The basic
objectives and purposes of the appeal and state hearing process are:
1. To safeguard the interests of the
client;
2. To provide a practical
means by which the client is afforded a protection against incorrect action on
the part of the county department;
3. To bring to the attention of the state
department and county department information that may indicate need for
clarification or revision of state and county policies and
procedures;
4. To assure equitable
treatment through the administrative process without resort to legal action in
the courts.
D. Any clear
expression verbally or in writing by the client or his or her representative,
that the client wants an opportunity to have a specific action of a county
department reviewed by the state department is considered a request for a state
level fair hearing. The county department shall, when asked, aid the person in
preparation of a request for a hearing. If the request for a hearing is made
verbally, the county department shall prepare a written request within ten (10)
calendar days for the client or his or her representative's signature or have
the client prepare such request, specifying the action he or she would like to
appeal and the reason for appealing that action.
1. The client is entitled to:
a. Representation by any person he or she
chooses pursuant to section
26-2-127(1)(a)(iv),
C.R.S., legal counsel retained at the client's own expense, or he or she may
represent him or herself;
b.
Examine the complete case file and any other documents, records, or pertinent
material to be used by the county at the state level fair hearing, including
the hearing packet as described in section 3.609.711.D.3, before the date of
hearing as well as during the hearing. However, the file shall not include the
names of confidential informants, privileged communications between the county
departments and its attorney, the nature and status of pending criminal
prosecutions, and any other information that is confidential or privileged
under state or federal law.
2. The client and staff of the county
department are entitled to:
a. Present
witnesses;
b. Establish all facts
and circumstances pertinent to the decision being appealed;
c. Advance any arguments without undue
interference;
d. Question or refute
any testimony or evidence, including opportunity to confront and cross-examine
adverse witnesses.
3.609.71
Hearing Procedures
3.609.711
State Level Fair Hearing
Procedures
The procedures in this section apply to all hearings in front
of the OAC. One or more persons from the Colorado Department of Personnel and
Administration, Office of Administrative Courts (OAC), are appointed to serve
as ALJs for the state department.
All hearings described in this section shall be conducted in
accordance with section
24-4-105, C.R.S.
A. The State Administrative Law Judge shall,
in preparation for the hearing, review the reasons for the decision under
appeal and be prepared to interpret applicable Departmental rules and/or
official written county policies governing the Colorado Works program and
pertaining to the issue under appeal.
B. The county department shall forward copies
of its applicable Colorado Works policies and any subsequent amendments,
including effective dates, to the OAC. Clients appealing a county action shall
be provided reasonable opportunity to examine the county's policies.
C. When legal counsel does not represent the
client and/or the department, the ALJ shall assist in bringing forth all
relevant evidence and issues relating to the appeal.
D. Upon receipt by the OAC of an appeal
request, OAC assigns a case number. The OAC sets a hearing date at least ten
(10) days from the date the appeal was requested, and sends a letter by first
class or certified mail, or by email through the electronic filing system to
the appellant and the county department notifying them of the date, time, and
place of the hearing.
1. The appellant is
told that if these arrangements are not satisfactory, he or she must notify the
OAC. An ALJ will decide if good cause exists, and whether the date, time,
and/or place of the hearing will be changed.
2. An information sheet shall be enclosed to
explain the hearing procedures to the appellant. The information sheet informs
the appellant that: he or she has the right to representation retained at his
or her own expense, such as legal counsel, a relative, a friend, or another
spokesperson, or he or she may represent himself or herself under section
26-2-127(1)(a)(iv),
C.R.S.; the appellant or his or her representative has the right to examine all
materials to be used at the hearing, before and during the hearing.
3. For all hearings except IPV ADH hearings,
the information sheet shall also include a notice that failure to appear at the
hearing as scheduled, without having secured a proper extension in advance, or
without having shown good cause for failure to appear, shall constitute
abandonment of the appeal and cause a dismissal thereof. Pursuant to section
3.609.5.M.2 -3., failure to appear does not result in a dismissal of an ADH
hearing.
4. If OAC sets the hearing
forty-five (45) days or more from the date of the notice of hearing, the county
department/agency shall, within fifteen (15) days but no later than thirty (30)
days prior to the hearing, prepare and mail a hearing packet to the appellant
with a copy to OAC. If the hearing is set less than 45 days from the date of
the notice of hearing, the county department/agency shall, within five (5) days
but no later than ten (10) days prior to the hearing, prepare and mail the
hearing packet. The hearing packet shall contain the following information:
a. The reasons for the decision of the county
department and a specific explanation of each factor involved, such as the
amount of excess income or residence factors;
b. The specific state rules governing the
Colorado Works program or county policy on which the decision is based with a
numeric reference to each such rule, including the appropriate Code of Colorado
Regulations (C.C.R.) cites;
c.
Notice that the county department will assist him or her by providing relevant
documents from the case file for his or her claim, if he or she so desires, and
that he or she has the opportunity to examine rules and other materials to be
used at the hearing concerning the basis of the county decision.
5. Information that the appellant
or his or her representative does not have an opportunity to see shall not be
made available as a part of the hearing record or used in a decision on an
appeal. No material made available for review by the ALJ may be withheld from
review by the appellant or his or her representative.
6. In Colorado Works program appeals, the ALJ
has twenty (20) calendar days from the hearing date to arrive at an initial
decision. Once an initial decision is rendered, the OAC immediately sends the
case and the initial decision to the State Department, Office of Appeals. The
Office of Appeals serves the initial decision on the parties via first class
mail and provides for an opportunity for the parties to file exceptions to the
initial decision prior to the Office of Appeals issuing a final agency
decision.
7. The initial decision
shall not be implemented pending review by the Office of Appeals and entry of a
final agency decision. All final agency decisions on these appeals shall be
made within ninety (90) calendar days from the date the request for hearing is
received.
E. When the
client has had a county conference and wishes to appeal the county department's
action to the OAC, the following procedures shall be followed:
1. As part of the local conference the client
is informed that if he or she wishes to appeal to the OAC for a hearing, the
county department shall provide relevant documents from the case file for the
client's claim, if he or she so desires, and that he or she may have the
opportunity to examine materials as described in the section 3.609.
2. The county department shall forward a copy
of the decision being appealed and a copy of the written notification given to
the client to the OAC.
3. A copy of
the OAC's notice to the client setting a date for the hearing is forwarded to
the county department. The county department shall provide the client with a
hearing packet in accordance with section 3.609.711 .D.3.
4. If the client indicates to the county
department that he or she desires to withdraw the appeal, the county shall
attempt to obtain a statement to that effect in writing and forward it to the
OAC.
5. If a client has legal
counsel or another authorized representative for the appeal, the county
department will not discuss the merits of the appeal or the question of whether
or not to proceed with it with the client unless the discussion is in the
presence of, or with the permission of, such counsel or such other authorized
representative.
6. If the county
department learns that legal counsel will represent the client, the county
department shall make every effort to ensure that it, too, is represented by an
attorney at the hearing. The county department may be represented by an
attorney in any appeal that it considers such representation
desirable.
7. If the appellant
needs interpretation services, the county department shall arrange to have
present at the hearing a certified interpreter who will be sworn to translate
correctly.
8. The fact that an
appellant and the county department have been notified that a hearing will be
held does not prevent the county department from reviewing the case and
considering any new factors which might change the status of the case, or
taking such action as may be indicated to reverse its decision or otherwise
settle the issue. Any change, which results in a voiding of the cause of
appeal, shall be immediately reported to the OAC.
9. Upon receipt of notice of a state hearing
on an appeal, the county department shall arrange for a suitable hearing room
appropriate to accommodate the number of persons, including witnesses, who are
expected to be in attendance, taking into consideration such factors as
privacy; absence of distracting noise; and the need for table, chairs,
electrical outlets, adequate lighting and ventilation, and conference telephone
facilities.
F.
Telephonic hearings may be conducted as an alternative to in-person hearings
unless otherwise requested by any of the parties. All applicable provisions of
the in-person hearing procedures will apply, such as the right to be
represented by counsel, the right to examine and cross-examine witnesses, the
right to examine the contents of the case file, and the right to have the
hearing conducted at a reasonable time and date.
G. The county department shall have the
burden of proof, by a preponderance of the evidence, to establish the basis of
the ruling being appealed. Every party to the proceeding shall have the right
to present his or her case or defense by verbal and documentary evidence, to
submit rebuttal evidence, and to conduct such cross-examination as may be
required for a full and true disclosure of the facts. Subject to these rights
and requirements, where a hearing is expedited and the interests of the parties
will not be subsequently prejudiced thereby, the ALJ may receive all or part of
the evidence in written form or by verbal stipulations.
H. The following provisions govern the
procedure at state hearings before the ALJ:
1.
The hearing is closed to the public however, any person or persons whom the
appellant wishes to appear for or with him or her may be present, and, if
requested by the appellant and in the record, such hearing may be
public;
2. The purpose of the
hearing is to determine the pertinent facts in order to arrive at a fair and
equitable decision in accordance with the rules of the state department. In
arriving at a decision, only the evidence and testimony introduced at the
hearing is considered by the ALJ. However, in circumstances when it is shown at
the hearing that medical or other evidence could not, for good cause, be
obtained in time for the hearing, the ALJ may permit the introduction of such
evidence after the hearing. The opposing party must also be furnished with a
copy of this new evidence and must have the opportunity to controvert or
otherwise respond to it. Delays in rendering the initial decision will be
attributed to the party requesting that the ALJ hear additional evidence after
the hearing;
3. Although the
hearing is conducted on an informal basis and an effort is made to place all
the parties at ease, it is essential that the evidence be presented in an
orderly manner so as to result in an adequate record;
4. When an ALJ makes a decision regarding the
merits of the case, or the dismissal of the appeal, that decision is called an
initial decision.
5. A complete and
exact record of the proceedings shall be made by electronic or other means.
When requested by the party, the OAC shall cause the proceedings to be
transcribed.
6. When the ALJ
dismisses an appeal for reasons other than failure to appear, the decision of
the ALJ shall be an initial decision, which shall not be implemented until the
Office of Appeals completes its review and enters a final decision.
7. The ALJ shall not enter a default against
any party for failure to file a written answer in response to the notice of
hearing, but shall base the initial decision upon the evidence introduced at
the hearing. However, an appellant may be granted a postponement of the hearing
if the county department has failed to provide the hearing packet required by
section 3.609.711, and the appellant has therefore been unable to prepare for
the hearing.
8. When OAC has
notified the appellant of the time, date, and place of the OAC hearing and the
appellant fails to appear at the hearing, without giving notice to the ALJ of
acceptable good cause for his or her inability to appear at the hearing, then
the appeal shall be considered abandoned. The ALJ shall enter an order of
dismissal and the OAC shall serve it upon the parties. The dismissal order
shall not be implemented pending review by the Office of Appeals and entry of
an agency decision.
However, the appellant shall have ten (10) calendar days from
the date the order of dismissal was mailed to draft and send a letter to the
ALJ explaining the reason for his or her failure to appear. If the ALJ then
finds that there was good cause for the appellant not appearing, the ALJ shall
vacate the order dismissing the appeal and reschedule the hearing date.
If the appellant does not submit a letter seeking to show
good cause within the ten (10) day period, the order of dismissal shall be
filed with the Office of Appeals of the state department. The Office of Appeals
shall review the dismissal of the appeal and give the appellant time to file
exceptions before issuing a final agency decision in accordance with the
procedures in section 3.609.72.
After the final agency decision is served on the parties, the
county department shall carry out the necessary actions within ten (10)
calendar days of the final agency decision becoming effective. The actions may
be: to provide assistance or services in the correct amount, to terminate
assistance or services, to recover assistance incorrectly paid, and/or other
appropriate actions in accordance with the rules. Pursuant to section
24-4-106(5),
C.R.S., the effective date of the final agency decision may be postponed if the
appellant makes a request for postponement due to irreparable injury to the
state department or the court reviewing the final agency action on judicial
review.
3.609.72
Decision and
Notification
A. Following the
conclusion of the state level fair hearing, the ALJ shall promptly prepare and
issue an initial decision and file it with the State Department, Office of
Appeals.
The Office of Appeals of The State Department is the designee
of the State Department's executive director for reviewing the initial decision
of the ALJ. The Office of Appeals enters a final agency decision on behalf of
the executive director affirming, modifying, or reversing the initial
decision.
1. The initial decision
shall make an initial determination whether the county or state department or
its agent acted in accordance with, and/or properly interpreted, the rules of
the state department and/or the county policies governing the Colorado Works
program.
2. The ALJ has no
jurisdiction or authority to determine issues of constitutionality or legality
of Colorado Statute, departmental rules, or county policy(ies) governing the
Colorado Works program.
3. The
initial decision shall advise the client who brought the appeal that failure to
file exceptions to the initial decision will waive the right to seek judicial
review under section
24-4-106, C.R.S. of a final agency
decision that affirms the initial decision.
4. The Office of Appeals shall promptly serve
the initial decision upon each party by first class mail, and shall transmit a
copy of the decision either electronically or by mail to the division of the
state department that administers the program(s) pertinent to the
appeal.
5. The initial decision
shall not be implemented pending review by the Office of Appeals and entry of
an agency decision.
B.
Upon receiving the initial decision, the Office of Appeals may issue an order
of remand based on an issue that warrants an immediate remand before the
initial decision is even mailed to the parties.
Additionally, the Office of Appeals may issue an order of
remand after its substantive review of an initial decision, and prior to
issuing a final agency decision, based on the need for further clarification,
findings, conclusions of law, and/or further proceedings. An order of remand is
not a final agency decision that is subject to judicial review under section
24-4-106, C.R.S.
C. Any party seeking final agency decision
which reverses, modifies, or remands the initial decision of the ALJ shall file
exceptions to the decision with the Office of Appeals, within fifteen (15) days
(plus three days for mailing) from the date the initial decision is mailed to
the parties. If that date falls on a weekend or State holiday, the due date
shall be moved to the next business day. Exceptions must state specific grounds
for reversal, modification or remand of the initial decision.
1. If the party asserts that the ALJ's
findings of fact are not supported by the weight of the evidence, the party
shall, simultaneously with, or prior to, the filing of exceptions request the
OAC create a transcript of all or a portion of the hearing and file it with the
Office of Appeals. No transcript is required if the review is limited to a pure
question of law. Similarly, if the exceptions assert only that the ALJ
improperly interpreted or applied State rules or statutes, the party filing
exceptions is not required to provide a transcript or recording to the Office
of Appeals.
If applicable, the exceptions shall state that a transcript
has been requested. Within five (5) days of the request for transcript, the
party requesting it shall advance the cost therefore to the transcriber
designated by the OAC unless the transcriber waives prior payment.
2. A party who is indigent and
unable to pay the cost of a transcript may file a written request, which need
not be sworn, with the Office of Appeals for permission to submit a copy of the
hearing recording instead of the transcript. If submission of a recording is
permitted, the party filing exceptions must promptly request a copy of the
recording from the OAC and deliver it to the Office of Appeals. Payment in
advance shall be required for the preparation of a copy of the
recording.
3. The Office of Appeals
shall serve a copy of the exceptions on each party by first class mail. Each
party shall be limited to ten (10) calendar days from the date exceptions are
mailed to the parties in which to file a written response to such exceptions.
The Office of Appeals shall not permit oral argument.
4. The Office of Appeals shall not consider
evidence that was not part of the record before the ALJ. However, the case may
be remanded to the ALJ for rehearing if a party establishes in its exceptions
that material evidence has been discovered which the party could not with
reasonable diligence have produced at the hearing.
5. While review of the initial decision is
pending before the Office of Appeals, the record on review, including any
transcript or recording of testimony filed with the Office of Appeals, shall be
available for examination by any party at the Office of Appeals during regular
business hours.
6. The state
department's division(s) responsible for administering the program(s) relevant
to the appeal may file exceptions to the initial decision, or respond to
exceptions filed by a party, even though the division has not previously
appeared as a party to the appeal. The division's exceptions or responses must
be filed in compliance with the requirements of this section exceptions filed
by a division that did not appear as a party at the hearing shall be treated as
requesting review of the initial decision upon the state department's own
motion.
7. In the absence of
exceptions filed by any party or by a division of the state department, the
Office of Appeals shall review the initial decision, and may review the hearing
file of the ALJ and/or the recorded testimony of witnesses, before entering a
final agency decision. Review by the Office of Appeals shall determine whether
the decision properly interprets and applies the rules of the state department
and/or relevant statutes, and whether the findings of fact and conclusions of
law support the decision. If a party or division of the state department
objects to the final agency decision entered upon review by the Office of
Appeals, the party or division may seek reconsideration of the final agency
decision pursuant to subsection c, below.
8. The Office of Appeals shall mail copies of
the final agency decision to all parties by first class mail.
9. For purposes of requesting judicial review
under section
24-4-106, C.R.S., the effective
date of the final agency decision shall be the third day after the date the
decision is mailed to the parties, even if the third day falls on Saturday,
Sunday, or a legal holiday. The parties shall be advised of this in the final
agency decision.
10. The State or
county department shall initiate action to comply with the final agency
decision within three (3) business days after the effective date. The
department shall comply with the decision even if reconsideration is requested,
unless the effective date of the agency decision is postponed by order of the
Office of Appeals or a reviewing court pursuant to section
24-4-106(5),
C.R.S.
D. No motion for
reconsideration shall be granted unless it is filed in writing with the Office
of Appeals within fifteen (15) days of the date that the final agency decision
is mailed to the parties. The motion must state specific grounds for
reconsideration of the final agency decision.
The Office of Appeals shall mail a copy of the motion for
reconsideration to each party of record and transmit electronically or in
writing to the appropriate division of the state department.
A motion for reconsideration of a final agency decision may
be granted by the Office of Appeals for the following reasons:
1. A showing of good cause for failure to
file exceptions to the initial decision within the fifteen (15) day period
allowed by section 3.609.7; or,
2.
A showing that the agency decision is based upon a clear or plain error of fact
or law. An error of law means failure by the Office of Appeals to follow a
rule, statute, or court decision, which controls the outcome of the
appeal.
E. When a final
agency decision concludes that an action of the county or state department was
not in accordance with rules of the department, or when the county or state
department determines that its action was not supported by the state
department's rules after the client makes a request for a hearing, the
adjustment or corrective payment is made retroactively to the date of the
incorrect action.
F. The client is
to be fully informed by the final agency decision of his or her further right
to apply for judicial review of the agency decision. Judicial review can be
started by filing an action for review in the appropriate state district court.
Any such action must be filed in accordance with section
24-4-106, C.R.S. and with the
Colorado Rules of Civil Procedure within thirty-five (35) days after the final
agency decision becomes effective.
G. The state department will establish and
maintain a method for informing, in summary and depersonalized form, all county
departments and other interested persons concerning the issues raised and
decisions made on appeals.
3.609.73
Protections to the
Individual
A. Confidentiality
All information obtained by the county department concerning
a client of Colorado Works is confidential information.
1. The county department shall inform county
officials and other persons who have dealings with the department as to the
confidential nature of information, which may come into their possession
through transaction of department business.
When a county worker consults a bank, current/former employer
of a client, another social agency, etc., to obtain information or eligibility
verification information, the identification of the county worker as an
employee of the county department will, in itself, disclose that an application
for assistance has been made by a client. In this type of contact, as well as
other community contacts, the department shall strive to maintain
confidentiality whenever possible.
2. Ensuring privacy while interviewing and
the continuous confidentiality of information are essential. This involves both
office facilities and county worker discretion. Office procedures and
facilities should be such that information is not inadvertently revealed to
persons not concerned with the affairs of a particular client. The county
worker must also use discretion in mentioning department business outside the
office.
3. The county or state
department may share information across systems so that a client is efficiently
served by programs using other systems to determine eligibility/maintain
information to the extent allowable under section
26-1-114, C.R.S.
B. Confidentiality must be treated
as follows:
1. Aggregated information not
identified with any client, such as caseload statistics and analysis, is not
confidential and may be released for any purpose.
2. Information secured by the county
department for the purpose of determining eligibility and need is
confidential.
3. Unless disclosure
is specifically permitted by the state department, the following types of
information are the exclusive property of, and are restricted to use by, the
state and county departments:
a. Names and
addresses of Colorado Works clients, and/or the grant payment amount;
b. Information contained in applications,
reports of medical examinations, correspondence, and other information
concerning any person from whom, or about whom, information is obtained by the
county department;
c. Records of
state or county departmental evaluations of the above information.
d. All information obtained through the
Income and Eligibility Verification System (IEVS).
4. No one outside the state or county
department shall have access to records of the department except for the
following individuals: those executing the Income and Eligibility Verification
System (IEVS); child support services officials; the SSA; and federal and State
auditors and private auditors for the county these individuals shall have
access only for purposes necessary for the administration of the program.
a. Client records may be used as exhibits for
administrative, civil and/or criminal proceedings when the proceedings relate
directly to the receipt of Colorado Works Programs.
b. Additional individuals shall have access
to the client's records as long as the client is notified and his or her prior
permission for release of information is obtained, unless the information is to
be used to verify income or eligibility under administration of the
IEVS.
c. If the information is
needed to provide benefits to a client in an emergency situation, and the
client is physically or mentally incapacitated to the extent that he or she
cannot sign the release form, and time does not permit obtaining the client's
consent prior to release of information, the county department must notify the
client within eleven (11) calendar days after supplying the information. If the
applicant or client does not have a telephone or cannot be personally contacted
within eleven (11) days, the county department must send written notification
containing the required information. The verbal or written notification shall
include the name and address of the agency that requested the information, the
reason the information was requested and a summary of the information
released.
d. The release of records
is strictly conditioned upon the information being used solely for the purpose
authorized and the person requesting the information must certify the use to be
made of the information and that it will not be disclosed or used for any other
purpose.
5. The district
attorney or county human services board member, shall have access to the
records of the department, excluding IEVS information, if the following
identified consent or notice conditions are met.
a. A district attorney upon presentation of a
written request accompanied by evidence that fraud is the reason for the
request
b. A county human services
board member, as described in section
26-1-116, C.R.S. if the board
member has an obligation to perform Colorado Works duties per county business
processes or county policies approved by the state department as described in
section 3.600.2 .
When a county board member or a district attorney who has met
the above conditions needs information about a client that is not in the
possession of the county department, the requestor, with the aid of the county
department, may contact the state department to inquire as to the appropriate
methods of securing it.
6. County departments shall not release
information regarding clients to law enforcement agencies unless a valid search
warrant is received by the county or state department, except as provided in
section 3.609.73.B.4.
7. Upon
request to the state department by the Colorado Bureau of Investigation, with
the responsibility for location and apprehension of a person with an
outstanding felony arrest warrant, the addresses of a fleeing felon who is a
client of Colorado Works programs shall be released pursuant to section
26-1-114(3)(a)(iii)
C.R.S.
8. The client shall have an opportunity to
examine such pertinent records concerning him or her as constitutes a basis for
adverse action and in the case of a county conference or a state level fair
hearing. Other requests for information by the client shall be honored only
when the client makes the request in person and his or her identity is verified
or the request is in the form of a written and signed statement.
The client may designate an individual, firm, or agency to
represent him or her at conferences and hearings. The client must put the
designation of such representative in writing. The representative shall have
access to all pertinent records.
9. The client may give a formal written
release for disclosure of information to other agencies, such as hospitals or
advocate agencies. If the client is not present, or the opportunity to agree or
object to the use or disclosure cannot practicably be provided because of the
client's incapacity or an emergency circumstance, the department may, in the
exercise of professional judgment, determine whether the disclosure is in the
best interests of the client and, if so, disclose only the minimum confidential
information necessary that is directly relevant to the client's care.
10. Information provided to agencies and/ or
individuals must be limited to the specific information required to determine
eligibility, conduct ongoing case management, or otherwise necessary for the
administration of the Colorado Works program. Information obtained through IEVS
will be stored and processed so that no unauthorized personnel can acquire or
retrieve the information. County departments are responsible for limiting IEVS
data to only those individuals requiring access to determine eligibility or
otherwise administer the programs.
All persons with access to information obtained pursuant to
the income and eligibility verification requirements will be advised of the
circumstances under which access is permitted, how data will be utilized,
confidentiality of data, and the sanctions imposed for illegal use or
disclosure of the information.
3.609.74
Protection Against
Discrimination
County departments are to administer Colorado Works in such a
manner that no client will, on the basis of race, color, religion, creed,
national origin, ancestry, sex/gender (including transgender status),
pregnancy, age, sexual orientation, gender identity, political affiliation, or
physical or mental disability, or any other protected groups as described in
the state department's anti-discrimination policy, be excluded from
participation, be denied any aid, care, or services, or other benefits of, or
be otherwise subjected to discrimination in his or her interactions with the
Colorado Works program.
A. The
references to "aid" includes all forms of assistance, including direct and
vendor payments, work programs and information and referral services.
B. The county department shall not, directly
or through contractual or other arrangements, on the grounds of race, color,
religion, creed, national origin, ancestry, sex/gender (including transgender
status), pregnancy, age, sexual orientation, gender identity, political
affiliation, or physical or mental disability, or any other protected status: :
1. Provide any aid to an individual which is
different, or is provided in a different manner, from that provided to others;
2. Subject a client to segregation
barriers or separate treatment in any manner related to access to or receipt of
assistance, care services, or other benefits;
3. Restrict a client in any way in the
enjoyment or any advantage or privilege enjoyed by others receiving aid, care,
services, or other benefits provided under assistance programs;
4. Treat a client differently from others in
determining whether he or she satisfies any eligibility or other requirements
or conditions which must be met in order to receive aid, care, services, or
other benefits provided under the Colorado Works program;
5. Deny a client an opportunity to
participate in assistance programs through the provision of services or
otherwise, or afford him or her an opportunity to do so which is different from
that afforded others under programs of assistance.
6. Deny a client the opportunity to
participate as a member of a planning or advisory body that is an integral part
of the program.
C. No
distinction is permitted in relation to the use of physical facilities, intake
and application procedures, caseload assignments, determination of eligibility,
and the amount and type of benefits extended by the county department to
clients.
D. The county department
shall ensure that other non-federal agencies, persons, contractors and other
entities with which it contracts business are in compliance with the above
prohibition of discrimination requirements on a continuing basis. The county
department staff is responsible for being alert to any discriminatory activity
of other agencies and for notifying the state department concerning the
situation.
E. The State department,
through its various contacts with agencies, persons, and referral sources, will
be continuously alert to discriminatory activity and will take appropriate
action to assure compliance with these prohibitions against discrimination the
county department, on notification by the state department, will also terminate
payments to the offender or association with any agency, person, or resource
being used which has been found by the state department or the Colorado Civil
Rights Division to continue discriminatory activity against clients.
F. A client who believes he or she is being
discriminated against may file a complaint with the county department, the
state department, the Colorado Civil Rights Division or directly with the
federal government. When a complaint is filed with the county department, the
county director is responsible for an immediate investigation of the matter and
taking necessary corrective action to eliminate any discriminatory activities
found. If such activities are not found, the client is given a written
explanation of the outcome. If the client is not satisfied, he or she is
requested to direct his or her complaint, in writing, to the state department,
client services section, which will be responsible for further investigation
and other necessary action. The client services section can be reached by email
at cdhs_clientservices@state.co.us.]
3.609.75
Additional Programs and
Services
3.609.751
Optional
Noncustodial Parent Programs
A county may provide services under the Colorado Works
program to a noncustodial parent (as defined in section 3.601), in accordance
with the county's policy. A noncustodial parent shall not be eligible to
receive basic cash assistance under the program.
A. Such services provided to a noncustodial
parent shall be intended to promote the sustainable employment of the
noncustodial parent and enable such parent to pay child support.
B. Provision of such services shall not
negatively impact the custodial parent's eligibility for benefits or
services.
C. Any services offered
to a noncustodial parent shall be based on the county's review of:
1. The noncustodial parent's request for
services; and,
2. The county's
assessment of the noncustodial parent's needs.
D. All services offered to a noncustodial
parent shall be outlined in an Individualized Plan entered into by the county
and the noncustodial parent.
E.
Services may include, but are not limited to, parenting skills, mediation,
workforce development, job training activities, and job search.