9 Colo. Code Regs. § 2503-5-3.587

Current through Register Vol. 47, No. 22, November 25, 2024

Section 9 CCR 2503-5-3.587 - 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 governing the Adult Financial program. An affected client who is dissatisfied with a county department or local service delivery agency 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 state level 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 or local service delivery agency. The time limitations for submitting a request for an appeal are:

1. When the client elects to avail him or herself of a county conference, but is dissatisfied with that decision, the request must be submitted in writing and mailed or delivered as described in 3 below within the ninety (90) day period specified in 2, below;

2. When the client elects not to avail him or herself of a county conference but wishes to appeal directly to the state, a written request for an appeal must be mailed or delivered as described in 3 below no later than ninety (90) calendar days from the date timely notice of the proposed action was mailed to the person;

3. A request for an appeal must be mailed or delivered to the Office of Administrative Courts. If the request for appeal is sent to or made with the county department, the county shall forward such request to the OAC.

B. Requests for state level fair hearings may result from such reasons as:

1. The opportunity to make an 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; requested reconsideration or a grant payment amount deemed incorrect has been refused or delayed; grant payment has been delayed through the holding of payments; the county department is demanding repayment for any part of a grant payment to a client 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 level fair 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 or local service delivery agency;

3. To bring to the attention of the State Department and county department or local service delivery agency 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 district 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 or local service delivery agency reviewed by the State Department is considered an appeal and a request for a state level fair hearing. The county department or local service delivery agency shall, when asked, aid the person in preparing 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, at a reasonable time 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.

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.

3.587.1STATE LEVEL FAIR HEARING PROCEDURES

One or more persons from the Colorado Department Personnel & Administration, OAC, are appointed to serve as ALJ for the State Department.

A. The State ALJ shall, in preparation for the hearing, review the reasons for the decision under appeal and be prepared to interpret applicable departmental rules governing the Adult Financial program and the issue(s) under appeal.

B. When legal counsel does not represent the client and/or the department or local service delivery agency, the ALJ shall assist in bringing forth all relevant evidence and issues relating to the appeal.

C. 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 to the appellant and the county department or local service delivery agency notifying them of the date, time, and place of the hearing.

1. The letter advises the appellant 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 with the letter that explains the hearing procedures to the appellant. The information sheet informs the appellant that:

a. He or she has the right to representation by an authorized representative 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;

b. 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; and

c. 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.

3. 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 or local service delivery agency and a specific explanation of each factor involved, such as the amount of excess property or income, assignment or transfer of property, or residence factors;

b. The specific State rules governing the Adult Financial program 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 or local service delivery agency 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.

4. 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.

5. In Adult Financial 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.

6. 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.

D. When the client has had a county conference and wishes to appeal the county department or local service delivery agency 's action to the OAC, the following procedures shall be followed:

1. As part of the county conference the client is informed that if he or she wishes to appeal to the OAC for a hearing, the county department or local service delivery agency 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 3.587.1.C.2.;

2. The county department or local service delivery agency shall forward a copy of the county decision being appealed and a copy of the written notification of the decision 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 or local service delivery agency. The county department or local service delivery agency shall provide the client with a hearing packet in accordance to Section 3.587.1.C.3.

4. If the client indicates to the county department that he or she desires to withdraw the appeal, the county department shall 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 or local service delivery agency 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 or local service delivery agency learns that legal counsel will represent the client, the county department or local service delivery agency shall make every effort to ensure that it, too, is represented by an attorney at the hearing. The county department/agency 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 or local service delivery agency have been notified that a hearing will be held does not prevent the county department/agency 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 that results in voiding the cause of appeal shall be immediately reported by the county department to the OAC.

9. Upon receipt of notice of a State hearing on an appeal, the county department or local service delivery agency 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.

E. Telephonic conference 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.

1. The ALJ shall conduct the hearings in accordance with the State Administrative Procedure Act, Article 4 of Title 24, C.R.S., specifically, Section 24-4-105.

2. The county department or local service delivery agency shall have the burden of proof, by a preponderance of the evidence, to establish the basis of the decision 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.

F. 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 on 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, see Section 3.587.2 addressing initial decisions;

5. A complete and exact record of the hearing shall be made by electronic or other means. When requested by the party, the OAC shall cause the proceedings to be transcribed at the expense of the requesting party;

6. 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 or local service delivery agency has failed to provide the hearing packet required by Section 3.587.1.D.3, and the appellant has therefore been unable to prepare for the hearing.

7. 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 after the Office of Appeals completes its review and enters a final agency decision.

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 a final 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 submits a letter seeking to show good cause and the ALJ finds that the stated facts do not constitute good cause, the ALJ shall enter an initial decision confirming the dismissal.

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 confirm the dismissal of the appeal by a final agency decision, which shall be served upon the parties.

After the final agency decision is served on the parties, the county department or local service delivery agency 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 in the correct amount; to terminate assistance; to recover assistance incorrectly paid; and/or other appropriate actions in accordance with the rules and final agency decision.

9. The appellant may file exceptions to any ALJ initial decision pursuant to Section 3.587.2.C.

3.587.2DECISION 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, local service delivery agency, or State Department or its agent acted in accordance with, and/or properly interpreted, the rules of the State Department governing the Adult Financial program.

2. The ALJ has no jurisdiction or authority to determine issues of constitutionality or legality of departmental rules.

3. The initial decision shall advise the client who brought the appeal that failure to file exceptions to findings of the initial decision will waive the right to seek judicial review of a final agency decision that affirms those findings.

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 in writing 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 a final 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.

C. Any party seeking a final agency decision which reverses, modifies, or remands the initial decision of the administrative law judge 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 that 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 a 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 audio 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 verbal 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 that 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 responsible for administering the program 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 D 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, 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 or local service delivery agency shall initiate action to comply with the final agency decision within three (3) working days after the effective date. The department shall comply with the decision even if reconsideration is requested; unless the effective date of the final agency decision is postponed by order of the Office of Appeals or a reviewing court.

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 3.587.2.b; or,

2. A showing that the final 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, local service delivery agency, or State Department was not in accordance with the rules of the State Department, or when the county/agency 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 final 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.

9 CCR 2503-5-3.587

37 CR 13, July 10, 2014, effective 8/1/2014

37 CR 17, September 10, 2014, effective 10/1/2014

38 CR 04, February 25, 2015, effective 3/20/2015

38 CR 04, February 25, 2015, effective 4/1/2015

38 CR 09, May 10, 2015, effective 6/1/2015

38 CR 15, August 10, 2015, effective 9/1/2015

38 CR 23, December 10, 2015, effective 1/1/2016

39 CR 17, September 10, 2016, effective 10/1/2016

40 CR 03, February 10, 2017, effective 2/14/2017

41 CR 05, March 10, 2018, effective 4/1/2018

41 CR 15, August 10, 2018, effective 9/1/2018

41 CR 19, October 10, 2018, effective 11/1/2018

42 CR 01, January 10, 2019, effective 2/1/2019

43 CR 01, January 10, 2020, effective 1/1/2020

43 CR 03, February 10, 2020, effective 3/1/2020

43 CR 11, June 10, 2020, effective 7/1/2020

43 CR 23, December 10, 2020, effective 1/1/2021

44 CR 03, February 10, 2021, effective 3/2/2021

44 CR 13, July 10, 2021, effective 8/1/2021

45 CR 03, February 10, 2022, effective 3/2/2022

45 CR 05, March 10, 2022, effective 4/1/2022

45 CR 13, July 10, 2022, effective 7/1/2022

45 CR 15, August 10, 2022, effective 8/10/2022

45 CR 15, August 10, 2022, effective 8/30/2022

46 CR 01, January 10, 2023, effective 12/10/2022

46 CR 01, January 10, 2023, effective 1/1/2023

46 CR 03, February 10, 2022, effective 3/2/2023