Current through Register Vol. 47, No. 5, March 10, 2024
A. When the Office of Administrative Courts
receives the appeal documents from the State
Department, the Office of Administrative Courts shall docket
the appeal and enter a procedural order to the parties indicating the
following:
1. The date and time for a
telephone scheduling conference with the parties.
2. During the telephone scheduling
conference, the Office of Administrative Courts shall determine the date for
the hearing. Following the scheduling conference, the Office of Administrative
Courts will issue a further procedural order and notice of hearing. The
order/notice will contain the hearing date, the fourteen (14) day deadline for
the notice of issues, the fourteen (14) day deadline for the appellant's
response and deadline for filing pre-hearing statements. Any party requiring an
extension or modification of any of the deadlines in the order may file a
request with the Administrative Law Judge. The office of administrative courts
shall also issue a protective order which will protect and govern the handling
of all pleadings, discovery, and evidence. The order must be signed by an
administrative law judge and must state that:
a. Any documents exchanged by the parties
containing confidential information, including, but not limited to pleadings,
APS reports and investigative records, medical records, law enforcement
investigation records, and documents regarding at-risk adults will be used for
the sole purpose of proceeding with this appeal.
b. The parties may disclose confidential
information to their attorneys or any expert witness only as necessary for the
prosecution or defense of the appeal. The appellant is not authorized to
disclose or use confidential information for any other purpose.
c. The parties may exchange discovery
containing information that is confidential under department rule
12 CCR
2518-1, § 30.920.
d. To the extent that the parties may
disclose confidential records to expert witnesses, the parties shall provide a
copy of the protective order to the expert witnesses and advise the expert
witness of his or her obligation not to disclose the records or information
learned from the confidential records.
e. The exchange and use of the confidential
information or records does not waive the right of either party to object to
the admission of the documents into evidence on any grounds.
f. If the parties use or offer confidential
information or records as evidence during the course of the hearing, counsel
and the parties shall take reasonable measures to protect such information or
records from public disclosure including but not limited to filing records
under seal.
g. The appellant must
return to the department all protected health information (including all copies
made) at the end of the appeal or, should the appellant choose to pursue any
further administrative remedies, when those remedies have been
exhausted.
h. The hearing regarding
the factual basis for the adult mistreatment finding shall be closed to the
public.
i. This order does not
prohibit the department from using documents or information as authorized,
required, or permitted by law.
3. The notice of issues shall include the
following:
a. The specific allegations(s) that
form the basis of the county department's substantiated finding that the
appellant was responsible for mistreatment of an at-risk adult;
b. The specific type of mistreatment for
which the appellant was substantiated and the legal authority supporting the
finding, and c. To the extent that the State Department determines that the
facts contained in CAPS support a modification of the type and/or severity
level of mistreatment determined by the county department, the State Department
shall so notify the county department and the appellant of that modification
and the process shall proceed on the modified type of mistreatment.
4. The appellant shall respond to
the State Department's notice of issues by providing the factual and legal
basis supporting the appeal to the State Department and to the Office of
Administrative Courts.
5. If the
appellant fails to participate in the scheduling conference referenced above,
or fails to submit a response to the State Department's notice of issues within
14 days, the Office of Administrative Courts shall deem the appeal to have been
abandoned by the appellant and render an initial decision dismissing the
appeal. In accordance with the procedures set forth below, the Office of
Appeals may reinstate the appeal for good cause shown by the
appellant.
6. In the event that
either party fails to respond to a motion to dismiss filed in the appeal, the
Administrative Law Judge shall not consider the motion to be confessed and
shall render a decision based on the merits of the motion.
B. The Administrative Law Judge shall conduct
the appeal in accordance with the Administrative
Procedure Act, Section
24-4-105, C.R.S. the rights of the
parties include:
1. The State
Department shall have the burden of proof to establish the facts by a
preponderance of the evidence and that the facts support the conclusion that
the appellant is responsible for the mistreatment indicated in the notice of
issues provided by the State Department. The Administrative Law Judge can
consider evidence other than the case record in CAPS in concluding that the
finding is supported by a preponderance of evidence;
2. Each party shall have the right to present
his or her case or defense by oral and documentary evidence, to submit rebuttal
evidence and to conduct cross-examination;
3. Subject to these rights and requirements,
where a hearing will be expedited and the interests of the parties will not be
subsequently prejudiced thereby, the Administrative Law Judge may receive all
or part of the evidence in written form, or by oral stipulations;
4. A telephonic hearing may be conducted as
an alternative to a face-to-face hearing unless either party requests a
face-to-face hearing in writing. The written request for a face-to-face hearing
must be filed with the Office of Administrative Courts and the other party at
least ten (10) calendar days before the scheduled hearing. A request for a
face-to-face hearing may necessitate the re-setting of the hearing;
and,
5. Where facilities exist that
have videoconferencing technology local to the county department that made the
finding, either party may request that the hearing be conducted via that
technology. The requesting party shall investigate the feasibility of this
approach and shall submit a written request outlining the arrangements that
could be made for video conference. The Office of Administrative Courts shall
hold the hearing via videoconferencing for the convenience of the parties
whenever requested and feasible. A request for a hearing via videoconferencing
may necessitate the re-setting of the hearing.
C. At the conclusion of the hearing, unless
the Administrative Law Judge allows additional time to submit documentation,
the Administrative Law Judge shall take the matter under advisement. After
considering all the relevant evidence presented by the parties, the
Administrative Law Judge shall render an initial decision for review by the
Colorado Department of Human Services, Office of Appeals.
D. The initial decision shall uphold, modify
or overturn/reverse the county finding. The Administrative Law Judge shall have
the authority to modify the type and/or severity level of mistreatment to meet
the evidence provided at the hearing. The Administrative Law Judge shall not
order the county to modify its record; rather, the State Department shall
indicate the outcome of the appeal in its portion of CAPS.
E. When an appellant fails to appear at a
duly scheduled hearing having been given proper notice, without having given
timely advance notice to the Office of Administrative Courts of acceptable good
cause for inability to appear at the hearing at the time, date and place
specified in the notice of hearing, then the appeal shall be considered
abandoned and the Administrative Law Judge shall enter an initial decision
dismissing the appeal. In accordance with the procedures set forth in Section
30.940 , the Office of Appeals may reinstate the appeal for good cause shown by
the appellant.
1Section 26-3.1-111(5)(h), C.R.S.,
refers to a health oversight agency defined in federal regulation at
42 CFR
164.501. This appears to be a typographical
error as no such regulation exists. The definition for health oversight agency
can be found at 45 CFR
164.501.
