10 Colo. Code Regs. § 2505-10-8.605

Current through Register Vol. 47, No. 16, August 25, 2024

Section 10 CCR 2505-10-8.605 - [Repealed effective 9/14/2024] DISPUTE RESOLUTION PROCEDURES

8.605.1DISPOSITION OF PETITIONS FOR DECLARATORY ORDERS

The Executive Director of the Department or designee may entertain petitions for declaratory orders in accordance with section 24-4-105(11), C.R.S., when a controversy or uncertainty exists involving the application of these rules or the Developmental Disability Act (section 25.5 -10 C.R.S.), to a particular set of circumstances between the parties. A petition may be filed when a process for resolving the controversy is not otherwise provided in these rules and an interpretation of the law will clarify the intent of the law in a particular situation. Thus the petitioner is asking for the Executive Director to "declare" the rights or status of the parties under the law that is at the heart of controversy.

A. Any petition filed pursuant to this rule shall set forth the following:

1. The name and address of the petitioner;

2. The statute, rule or order to which the petition relates;

3. A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty; and,

4. All parties directly involved in the subject matter of the petition as known to the petitioner.

B. If the Executive Director or designee decides to rule on the petition, the following procedures shall apply:

1. The Executive Director or designee shall provide notice of the petition and an opportunity to respond to the petition to all parties noted by the petitioner or otherwise known to the Department to be directly interested in the petition;

2. The Executive Director or designee may rule upon the petition based solely upon the facts presented in the petition and response. In such a case:

Any ruling of the Department will apply only to the extent of the facts presented in the petition and the response;

3. The Executive Director or designee may request the petitioner or any involved party to submit additional information, or file a written brief, memorandum, or statement of position;

4. The Executive Director or designee may rule upon the petition without a hearing or may set the petition for hearing, upon due notice to all parties to obtain additional facts or information; and,

5. The ruling of the Department shall be binding upon all parties to the matter.

8.605.2DISPUTES BETWEEN INDIVIDUALS AND PROGRAM APPROVED SERVICE AGENCIES

A. Every community centered board, regional center and program approved service agency shall have procedures which comply with requirements as set forth in these rules and section 25.5-10-212, C.R.S., for resolution of the following disputes involving individuals:

1. The applicant is not eligible for services or supports;

2. The person is no longer eligible for services or supports;

3. Services or supports are to be terminated; or,

4. Services set forth in the IP which are to be provided, or are to be changed or reduced, or denied.

B. The procedure shall contain an explanation of the process to be used by persons receiving services or applicants for services or parents of a minor, guardians and/or authorized representatives in the event that they are dissatisfied with the decision or action of the community centered board, regional center or program approved service agency.

C. The dispute resolution procedure shall be stated in writing, in English. Interpretation in native languages other than English and through such modes of communication as may be necessary shall be made available upon request.

1. The procedure shall be provided, orally and in writing, to all persons receiving services or applicants for services and parents of a minor, guardian, and/or authorized representative at the time of application, at the time the individualized plan is developed, any time changes in the plan are contemplated, and upon request by the above named persons.

2. The procedure shall state that use of the dispute resolution procedure shall not prejudice the future provision of appropriate services or supports to the individual in need of and/or receiving services.

3. The procedure shall state that an individual shall not be coerced, intimidated, threatened or retaliated against because that individual has exercised his or her right to file a complaint or has participated in the dispute resolution process.

D. The procedure of the community centered board, regional center or the program approved service agency shall stipulate that notice of action proposed as defined in section 8.600.4 shall be provided to the person receiving services/applicant, and to the person's parents if a minor, guardian and authorized representative at least fifteen (15) days prior to the date actions enumerated in section 8.605.2.A become effective.

The above named persons may dispute such action(s) by filing a complaint with the agency initiating the action. Upon such complaint, the procedures set forth in section 8.605.2.E and the following provisions shall be initiated.

E. The procedure of the community centered board, regional center and program approved service agency shall provide the opportunity for resolution of any dispute through an informal negotiation process which may be waived only by mutual consent.

Mediation could be considered as one means to informal negotiation if both parties voluntarily agree to this process.

F. The opportunity for resolution of a dispute through informal negotiation shall include the scheduling of a meeting of all parties or their representatives within fifteen (15) days of the receipt of the complaint.

G. After opportunities for informal negotiation of the dispute have been attempted or mutually waived, either party may request that the dispute resolution process set forth in section 8.605.2.H and the following provisions shall be initiated.

Parent(s) or guardian of a minor, age birth to three years, may utilize the dispute resolution process specified under the requirements of the Procedural Safe Guards for early intervention services pursuant to the Individuals with Disabilities Education Act.

H. The dispute resolution procedures of the community centered board, regional center or program approved service agency shall, at a minimum, afford due process by providing for:

1. The opportunity of the parties to present information and evidence in support of their positions to an impartial decision maker. The impartial decision maker may be the director of the agency taking the action or their designee. The impartial decision maker shall not have been directly involved in the specific decision at issue;

2. Timely notification of the meeting (at least ten days prior) to all parties unless waived by the objecting parties;

3. Representation by counsel, authorized representative, or another individual if the objecting party desires;

4. The opportunity to respond to or question the opposing position;

5. Recording of the proceeding by electronic device or reporter;

6. Written decision within fifteen (15) days of the meeting setting forth the reasons therefore;

7. Notification that if the dispute is not resolved, the objecting party may request that the Executive Director of the Department or designee review the decision; and,

8. Notification to the Department by the community centered board, regional center or program approved service agency of all disputes proceeding according to section 8.605.2.H and the determination made thereon.

I. The dispute resolution procedure of the Department shall be as follows:

1. A request to the Executive Director of the Department to review the outcome of the dispute resolution process shall be submitted to the Department within fifteen (15) working days from which the written decision was postmarked;

2. The request for review shall also contain a statement of the matters in dispute and all information or evidence which is deemed relevant to a thorough review of the matter. The community centered board, regional center or the program approved service agency or other party shall be afforded the opportunity likewise to respond within fifteen (15) working days;

3. The Executive Director of the Department or designee shall have the right to additional information and may request oral argument or a hearing if deemed necessary by the Executive Director or designee to render a decision;

4. The Executive Director of the Department or designee shall provide a de novo review of the dispute and shall render a decision within ten (10) working days of the submission of all relevant information; and,

5. The decision of the Executive Director of the Department shall constitute final agency action on the dispute.

J. No person receiving services may be terminated from services or supports during the dispute resolution process unless the Department determines an emergency situation, as meeting the criteria set forth in section 8.605.4 exists.

8.605.3DISPUTES BETWEEN DEPARTMENT AND COMMUNITY CENTERED BOARD OR DEPARTMENT AND PROGRAM APPROVED SERVICE AGENCY

A. Pursuant to section 25.5-10-208(2)(c), C.R.S., the following shall apply in the event that the terms of a contract between the Department and a community centered board or program approved service agency are disputed by either party:

1. The community centered board or program approved service agency shall notify the Manager of the Office of Community Living of the circumstances of the dispute.

a. The parties shall informally meet at a mutually agreeable time to attempt resolution.

b. If the dispute cannot be resolved through this informal process then the formal process at section 8.605.3.A.2 shall be used.

2. The community centered board or program approved service agency shall submit a written request for formal dispute resolution to the Department.

a. The request shall state the specific grounds for the dispute.

b. It shall include all available exhibits, evidence, arguments, and documents believed to substantiate the protest, and the relief requested.

3. The Department may request additional information deemed necessary to resolve the dispute.

4. Within fifteen (15) working days following the receipt of written materials and additional requested information, the Department shall respond to the request by issuing a written decision, which shall be inclusive of the reasons for the decision.

5. A copy of the documentation presented or considered, the decision made and the contract shall be maintained in the files of the Department.

6. The Department's decision shall represent final agency action on the disputed issue.

B. Notwithstanding the dispute, the community centered board or program approved service agency shall honor all contractual obligations entered into in its contract with the Department. No agency shall have its contract terminated pending resolution of a contractual dispute, unless necessary for the preservation of public health, safety or welfare, as determined pursuant to section 8.605.4.

C. Nothing in this procedure shall prohibit the Department from initiating action to revoke designation of a community centered board or program approval of a service agency based on evidence presented in the request for Departmental intervention or during its review.

8.605.4EMERGENCY PROCEEDINGS

A. The Department retains the authority to enter emergency orders, when necessary, to preserve the health, safety or welfare of the public or of persons receiving services, including, but not limited to, situations that:

1. Are ongoing or likely to recur if not promptly corrected or otherwise resolved and, likely to result in serious harm to the individual or others; or,

2. Arise out of a service provider's discontinuance of operation generally, or discontinuance of services to a particular individual because the service agency is unable to ensure that person's safety or the safety of others.

B. The party requesting the Department to enter an emergency order shall submit all relevant documentation to the Department to which the opposing party shall have the opportunity to respond.

C. The Department may request additional information as needed and shall determine the timeframes for the submission.

D. In addition to ruling on the request for emergency order, the Department may review the substantive issues involved in the dispute and determine the required course of action.

8.605.5GRIEVANCE/COMPLAINT PROCESS

A. Every community centered board, regional center and program approved service agency shall have procedures setting forth a process for the timely resolution of grievances or complaints of the person receiving services, parents of a minor, guardian and/or authorized representative, as appropriate. Use of the grievance procedure shall not prejudice the future provision of appropriate services or supports.

B. The procedure shall be provided, orally and in writing, to all persons receiving services, the parents of a minor, guardian and/or authorized representative, as appropriate, at the time of admission and at any time that changes to the procedure occur.

C. The grievance procedure shall, at a minimum, include the following:

1. Who within the agency will receive grievances;

2. Identification of support person(s) to assist in the submission of a grievance;

3. An opportunity for individuals to come together in order to attempt finding a mutually acceptable solution. This could include the use of mediation if both parties voluntarily agree to this process;

4. Timelines for the resolution of the grievance;

5. Consideration by the agency director or designee if the grievance cannot be resolved at a lower level; and,

6. No individual shall be coerced, intimidated, threatened or retaliated against because the individual has exercised his or her right to file a grievance or has participated in the grievance process.

10 CCR 2505-10-8.605

47 CR 16, August 25, 2024, effective 9/14/2024