Section 26-3.1-111 - Access to CAPS - employment checks - confidentiality - fees - rules - legislative declaration - definitions(1) The general assembly finds and declares that individuals receiving care and services from persons employed in programs or facilities described in subsection (7) of this section or from persons appointed to be a conservator or guardian of an at-risk adult are vulnerable to mistreatment, including abuse, neglect, and exploitation. It is the intent of the general assembly to minimize the potential for employment of, or appointment as conservators or guardians, persons with a history of mistreatment of at-risk adults in positions that would allow those persons unsupervised access to these adults. As a result, the general assembly finds it necessary to strengthen protections for vulnerable adults by requiring certain employers and the courts to request a CAPS check by the state department to determine if a person who will provide direct care to an at-risk adult or who may be appointed as a conservator or guardian for an at-risk adult has been substantiated in a case of mistreatment of an at-risk adult. The general assembly also finds that it is necessary to require that certain employers cooperate with, and provide access to, county departments during county investigations of mistreatment of at-risk adults pursuant to section 26-3.1-103 (1.3).(2) As used in this section, unless the context otherwise requires: (a) "Employee" means a person, other than a volunteer, who is employed by or contracted with an employer, and includes a prospective employee.(b) "Employer" means a person, facility, entity, or agency described in subsection (7) of this section and includes a prospective employer. "Employer" also includes a person hiring someone to provide consumer-directed attendant support services pursuant to article 10 of title 25.5, if the person requests a CAPS check.(c) "Staffing agency" means an individual or organization, including any partnership, limited liability partnership, limited liability company, limited liability limited partnership, association, trust, joint stock company, insurance company, or corporation, whether domestic or foreign, engaged in the business of providing and assigning workers to placements with employers described in subsection (7) of this section. "Staffing agency" includes, but is not limited to, supplemental health-care staffing agencies defined in section 8-4-125 (1)(e).(3)(a)Employer CAPS checks. The state department shall establish and implement a state-level program for employers to obtain a CAPS check to determine if a person who will provide direct care to an at-risk adult is substantiated in a case of mistreatment of an at-risk adult. The state department's program must be operational for an employer CAPS check on and after January 1, 2019.(b)Conservatorship and guardianship CAPS checks. Beginning January 1, 2022, the state department shall provide the courts the results of a CAPS check, upon the court's request and using forms approved by the state department, to determine if a person who may be appointed as a conservator or guardian of an at-risk adult is substantiated in a case of mistreatment of an at-risk adult. This subsection (3)(b) does not apply to office of public guardianship employees required to undergo a CAPS check pursuant to section 13-94-105 and subsection (7)(j) of this section, or adult protective services employees required to undergo a CAPS check pursuant to section 26-3.1-107(2).(4) The state department shall not release information relating to any person during a CAPS check unless the person is substantiated in a case of mistreatment of an at-risk adult.(5) The state department shall promulgate rules for the implementation of this section, which rules must include the following: (a) The employer process for requesting a CAPS check for an employee who has an active application for employment for a position in which the person will provide direct care to an at-risk adult;(b) The state department or county department employees or employee positions granted access to CAPS; state department shall promulgate rules for the implementation of this section, which rules must include the following: (c) The process for completing a CAPS check and the parameters for establishing and collecting the fee charged to an employer or the court for each CAPS check;(d) The information in CAPS that will be made available to an employer or the court requesting a CAPS check;(e) The purposes for which the information in CAPS may be made available; (f) The consequences of the improper release of the information in CAPS;(g)The process for the state department to notify a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator within such a health oversight agency when a professional regulated by a regulator within such a health oversight agency, as those terms are defined in section 12-20-102 (13) and (14), is substantiated in a case of mistreatment of an at-risk adult pursuant to subsection (12) of this section; and(h)The information that will be made available to a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator, as defined in section 12-20-102 (14), within such a health oversight agency, for the purpose of conducting a regulatory investigation pursuant to section 12-20-401.(6)(a)(I) On and after January 1, 2019, prior to hiring or contracting with an employee who will provide direct care to an at-risk adult, an employer described in subsection (7) of this section shall request a CAPS check by the state department pursuant to this section to determine if the person is substantiated in a case of mistreatment of an at-risk adult; except when the employer is hiring or contracting with an employee provided by a staffing agency, if the staffing agency completed a CAPS check and provided the results to the employer pursuant to subsection (6)(a)(V) of this section. Within ten days after the date of the employer's request, if the employee was substantiated in a case of mistreatment of an at-risk adult, unless the finding was expunged through a successful appeal to the state department, the state department shall provide the employer with information concerning the mistreatment through electronic means, or other means if requested by the employer, including the date of the substantiated finding, the type of mistreatment reported, and the county that investigated the report of mistreatment. If an employer receives a CAPS check on a person and does not initiate the hiring process at the time of receiving the check but wants to hire the person at a subsequent time that is more than thirty days from receipt of the prior CAPS check results, the employer shall request a new CAPS check prior to hiring the person pursuant to state department rules.(II) A person or entity conducting employee screening on behalf of an employer may request a CAPS check pursuant to this section and may receive the results of the CAPS check from the state department. The person or entity conducting employee screening on behalf of the employer shall provide the employer with the results of the CAPS check.(III) If the employer is also an employee or volunteer, the employer shall request the CAPS check on himself or herself. If the employee or volunteer is determined during either the initial CAPS check or subsequently as provided in subsection (10) of this section to have a substantiated finding of mistreatment, both the employer and the employer's parent company or oversight agency shall receive the CAPS check results.(IV) An employer described in subsection (7) of this section or a person may request a CAPS check by the state department pursuant to this section on a volunteer who will provide direct care to an at-risk adult to determine if the volunteer is substantiated in a case of mistreatment of an at-risk adult. The volunteer shall provide to the employer written authorization and any required identifying information necessary to conduct a CAPS check pursuant to this section. Within ten days after the date of the employer's request, if the volunteer was substantiated in a case of mistreatment of an at-risk adult, unless the finding was expunged through a successful appeal to the state department, the state department shall provide the employer with information concerning the mistreatment through electronic means, or other means if requested by the employer, including the date of the substantiated finding, the type of mistreatment reported, and the county that investigated the report of mistreatment. For purposes of this subsection (6)(a)(IV), "employer" includes a person or entity conducting volunteer screening on behalf of the employer. The provisions of subsections (6)(d), (6)(e), (6)(e.3), and (6)(e.7) of this section apply to this subsection (6)(a)(IV).(V) A staffing agency shall request a CAPS check for an employee it is placing with an employer described in subsection (7) of this section. The staffing agency shall provide the employer with the results of the CAPS check and any subsequent notifications of substantiated findings, as described in subsection (10) of this section, against the employee, within five business days after receipt of the information, for the duration of the employee's placement with the employer.(b) As a condition of employment or contracting, a person seeking employment or to contract with the employer in a position in which the person will provide direct care to an at-risk adult shall provide to the employer, or to a person or entity conducting employee screening on behalf of the employer, written authorization and any required identifying information necessary to conduct a CAPS check pursuant to this section. The employer shall pay a fee established by the state department for each CAPS check, or may require the person seeking employment or to contract with the employer to pay the required fee for the CAPS check.(c)(I) An employer, or a person or entity conducting employee screening on behalf of the employer, that relies upon information obtained through a CAPS check in making an employment decision or concludes that the nature of any information disqualifies a prospective employee from employment is immune from civil liability in an action brought by the prospective employee for that conclusion or decision unless the CAPS information relied upon is false and the employer, or a person or entity conducting employee screening on behalf of the employer, knows the information is false.(II) Nothing in this subsection (6)(c) amends, supersedes, or otherwise limits the civil liability of the employer, or a person or entity conducting employee screening on behalf of the employer, with respect to any claim or action related to the employment decision other than a claim or action relating to the information received by the employer, or a person or entity conducting employee screening on behalf of the employer, pursuant to a CAPS check.(d)(I) Except as provided in subsection (6)(d)(II) of this section, an employer, or a person or entity conducting employee screening on behalf of the employer, is deemed to have violated subsection (6)(e) of this section if the employer, or a person or entity conducting employee screening on behalf of the employer: (A) Requests a CAPS check pursuant to this section for a person who is not an existing employee or who does not have an active application for or is not contracting with the employer, or who does not have an active application to contract with the employer, for a position providing direct care to an at-risk adult; or(B) Releases information obtained pursuant to the CAPS check or a subsequent notification to any person or entity other than a person or entity directly involved in the employer's hiring process, except as required by subsection (6)(a)(V) of this section.(II) An employer, or a person or entity conducting employee screening on behalf of the employer, has not violated subsection (6)(e) of this section if the employer, or a person or entity conducting employee screening on behalf of the employer, releases information received through a CAPS check: (A) To a state agency or its contractor, upon the request of the agency or contractor, for purposes of an employer inspection or survey or for purposes of a regulatory investigation conducted by a health oversight agency, as defined in42 CFR 164.501pursuant to section 12-20-401; or(B) At the request of a current or prospective employer of a health care worker or caregiver in accordance with section 8-2-111.6 or section 8-2-111.7.(e) Any person who improperly releases or who willfully permits or encourages the release of data or information obtained through a CAPS check to persons not permitted access to the information pursuant to this article 3.1 commits a class 2 misdemeanor and is punished as provided in section 18-1.3-501.(e.3) A person commits a class 2 misdemeanorpunishable pursuant to section 18-1.3-501 if the person requests a CAPS check for a person who is not:(I)An employee or a volunteer providing direct care, or is not being considered for such employment; or(II)A care provider or is not being considered as a care provider for a recipient of consumer-directed attendant support services pursuant to article 10 of title 25.5; or(III)A person who may be appointed as a conservator or guardian of an at-risk adult.(e.7) An employee who knowingly provides inaccurate information to the employee's employer for a CAPS check, an employer or other person or entity conducting an employee screening on behalf of the employer that knowingly provides inaccurate information in the request for a CAPS check, or a person who may be appointed as a conservator or guardian of an at-risk adult who knowingly provides inaccurate information to the court for a CAPS check commits a class 2 misdemeanor and shall be punished pursuant to section 18-1.3-501.(f) Nothing in this section prohibits an employer from hiring or contracting with an employee who will provide direct care to an at-risk adult prior to receiving the results of the CAPS check.(7) The following employers shall request a CAPS check pursuant to this section: (a) A health facility licensed pursuant to section 25-1.5-103, including those wholly owned and operated by any governmental unit;(b) An adult day care facility, as defined in section 25.5-6-303(1);(c) A community integrated health care service agency, as defined in section 25-3.5-1301(1);(d) A program-approved service agency or contracted agency providing or contracting for long-term services and supports pursuant to article 10 of title25.5;(e) A case management agency, as defined in section 25.5-6-1702 (2);(f) An area agency on aging, as defined in section 26-11-201(2), and any agency or provider the area agency on aging contracts with to provide services;(g) A facility operated by the state department for the care and treatment of persons with mental health disorders pursuant to article 65 of title 27;(h) A facility operated by the state department for the care and treatment of persons with intellectual and developmental disabilities pursuant to article 10.5 of title 27;(i) Veterans community living centers operated pursuant to article 12 of this title 26; (j) The office of public guardianship pursuant to section 13-94-105; (k) Staffing agencies when they are placing employees with an employer as described in subsections (7)(a) to (7)(j) of this section.(8) A person hiring someone to provide consumer-directed attendant support services pursuant to article 10 of title 25.5 may request a CAPS check pursuant to this section at the person's expense. The person requesting the CAPS check must comply with state department rules and the provisions of subsection (6) of this section relating to the release of information obtained through a CAPS check.(8.5)(a) On and after January 1, 2022, prior to appointing a person as a conservator or guardian of an at-risk adult, the court that receives a filing of a petition for conservatorship or guardianship shall request a CAPS check by the state department using forms approved by the state department to determine if the person is substantiated in a case of mistreatment of an at-risk adult. The court shall require the petitioner for conservatorship or guardianship to complete the state-department-approved written authorization prior to requesting a CAPS check. The court shall pay a fee established by the state department for each CAPS check and may require the petitioner for conservatorship or guardianship to pay the court the required fee for the CAPS check .(b)Within seven calendar days after the date of the court's request, if the person who may be appointed as a conservator or guardian has been substantiated in a case of mistreatment of an at-risk adult, the state department shall provide the court with information concerning the mistreatment, which information must include, at a minimum, the date of the substantiated finding, the type and severity of the mistreatment, and the county that investigated the report of mistreatment.(c)The state department shall disclose to the court that the person substantiated in a case of mistreatment of an at-risk adult has the right to initiate an appeal of the substantiated finding within the time frame set forth in state department rules. If the appeal is active at the time the state department notifies the court of the results of the CAPS check, the state department shall inform the court that such appeal is active. The state department shall not provide the court the information specified in subsection (8.5)(b) of this section if the finding about the person was expunged through a successful appeal.(d)The court shall have the discretion to consider the results of the CAPS check and determine the weight of the information and its probative value.(e)Nothing in this subsection (8.5) delays or precludes the court's appointment of an emergency guardian or conservator of an at-risk adult pursuant to section 15-14-312 or 15-14-412, regardless of the timing of the state department's notification of the CAPS check results.(9) Except for the costs incurred for the development and initial implementation of the program, direct and indirect costs incurred for the administrative appeals process for persons appealing claims of mistreatment of at-risk adults and the direct and indirect costs of conducting employer-requested or court-requested CAPS checks pursuant to this section are funded through a fee assessed on an employer or the court for each CAPS check. The state department shall establish and collect the fee pursuant to parameters set forth in rule established by the state board. At a minimum, the state board's rules must include a provision requiring the state department to provide notice of the fee to interested persons and the maximum fee amount that the state department shall not exceed without the express approval of the state board. The fee established must not exceed direct and indirect costs incurred for the administrative appeals process for persons appealing claims of mistreatment of at-risk adults and the direct and indirect costs of conducting employer-requested or court-requested CAPS checks pursuant to this section. Fees collected for CAPS checks shall be transferred to the state treasurer and credited to the records and reports fund created in section 19-1-307 (2.5).(10)Notification to employer. The state department shall provide notification to the employer if a substantiated finding of mistreatment by an employee is subsequently entered into CAPS.(11)Notification to court. The state department shall provide notification to the court within seven calendar days after a substantiated finding of mistreatment by a person appointed as a conservator or guardian for an at-risk adult is subsequently entered into CAPS. The state department shall provide the court with information concerning the mistreatment, which information must include, at a minimum, the date of the substantiated finding, the type and severity of the mistreatment, and the county that investigated the report of mistreatment. The state department shall disclose to the court the time frame by which an appeal may be initiated by the person substantiated in a case of mistreatment of an at-risk adult.(12)Notification to DORA.(a) The state department shall provide notification to a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator within such a health oversight agency within ten calendar days after a substantiated finding of mistreatment by a professional regulated by a regulator, as those terms are defined in section 12-20-102 (13) and (14). The notification must provide a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator within such a health oversight agency with information concerning the mistreatment by the professional, which information must include, at a minimum, the professional license number of the person substantiated in a case of mistreatment, the date of the substantiated finding, the name of the mistreated at-risk adult, the type and severity of the mistreatment, the location or residence of the mistreated at-risk adult, the location where the mistreatment occurred, and the county that investigated the report of mistreatment. The state department shall disclose to a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies, or a regulator within such a health oversight agency, that the person substantiated in a case of mistreatment of an at-risk adult has the right to initiate an appeal of the substantiated finding within the time frame set forth in state department rules.(b) Any information the state department provides to a health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator within such a health oversight agency pursuant to subsection (12)(a) of this section is confidential, not subject to part 2 of article 72 of title 24, and must be used for purposes of a regulatory investigation conducted pursuant to section 12-20-401. If the information is admitted as evidence during a disciplinary hearing held pursuant to section 12-20-403 or used as the basis of public discipline, the information must be de-identified to protect the privacy of the at-risk adult. A health oversight agency, as defined in42 CFR 164.501, within the department of regulatory agencies or a regulator within such a health oversight agency shall have the discretion to consider the results of the CAPS check and determine the weight of the information and its probative value.(c)(I) The notification process described in this subsection (12) must be operational no later than January 1, 2022.(II) This subsection (12)(c) is repealed, effective January 1, 2022.Amended by 2023 Ch. 13, § 1, eff. 1/1/2024.Amended by 2023 Ch. 282,§ 10, eff. 5/30/2023.Amended by 2021 Ch. 83, § 52, eff. 7/1/2024.Amended by 2021 Ch. 462, § 489, eff. 3/1/2022.Amended by 2021 Ch. 106, § 4, eff. 9/7/2021.Amended by 2020 Ch. 265, § 6, eff. 9/14/2020.Amended by 2018 Ch. 35, § 34, eff. 8/8/2018.Added by 2017 Ch. 272, § 6, eff. 5/30/2017.L. 2017: Entire section added, (HB 17-1284), ch. 272, p. 1499, § 6, effective May 31. L. 2018: (7)(g) amended, (SB 18-091), ch. 35, p. 390, § 34, effective August 8. For the legislative declaration in SB 18-091, see section 1 of chapter 35, Session Laws of Colorado 2018.