Current through Register Vol. 47, No. 5, March 10, 2024
A. Pursuant to
Section 26-3.1-111(6)(a)(I),
C.R.S., beginning January 1, 2019, the following employers shall request a CAPS
check prior to hiring or contracting with a new employee who will provide
direct care to 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 as
directed in Section 30.960.D and pursuant to Section
26-3.1-111
(6)(a)(V), C.R.S. employers, and may request
a CAPS check for existing employees or volunteers who provide direct care to an
at-risk adult.
1. Health facilities licensed
pursuant to Section
25-1.5-103, C.R.S., including
those wholly owned and operated by any governmental unit;
2. Adult day care facilities, as defined in
Section 25.5-6-303(1),
C.R.S.;
3. Community integrated
health care service agencies, as defined in Section
25-3.5-1301(1);
4. Community-Centered Boards or
program-approved service agencies that provide or contract for services and
supports, pursuant to C.R.S. Article
10 OF Title
25.5;
5. Single Entry Point agencies, as described
in Section 25.5-6-106, C.R.S.;
6. Area Agencies on Aging, as defined in
Section 26-11-201(2),
C.R.S., and any agency or provider the Area Agency on Aging contracts with to
provide services;
7. Facilities
operated by the State Department for the care and treatment of persons with
mental illness, pursuant to C.R.S. Article
65 OF Title
27;
8. Facilities operated by the State
Department for the care and treatment of persons with intellectual and
developmental disabilities, pursuant to C.R.S. Article
10.5 OF Title
27;
9. Veterans Community Living Centers,
operated pursuant to C.R.S. Article
12 OF Title
26;
10. The Office of Public Guardianship
pursuant to Section
13-94-105(6),
C.R.S.; and,
11. Staffing agencies,
as defined in Section 30.100, when they are placing employees with an employer
described in Section 30.960.A and pursuant to Section
26-3.1-111(7)(a) to
(7)(j), C.R.S.
B. Pursuant to Section 26-3.1.-111(3)(b),
C.R.S., beginning January 1, 2022, the state department shall provide the
courts the results of a CAPS check, upon the court's request, for a potential
appointee as a conservator or guardian of an at-risk adult, with the exception
of county department Adult Protective Services staff who are already required
to undergo a CAPS check pursuant to Section
26-3.1-107(2),
C.R.S., and the Office Of Public Guardianship staff required to undergo a CAPS
check pursuant to Section
26-3.1-111(7)(j),
C.R.S.
C. Pursuant to Section
26-3.1-111(8), a
person hiring someone to provide consumer-directed attendant support services
(CDASS), pursuant to C.R.S. Article
10 of Title
25.5, may
request a CAPS check at the person's expense.
D. Pursuant to Section
26-3.1-111(6)(a)(V),
C.R.S., beginning January 1, 2024, a staffing agency shall request a CAPS check
for an employee it is placing with an employer outlined in Section 30.960.A.
The staffing agency shall provide the employer with a copy of the official
results of the CAPS check received from the state department and a copy of any
official flagged check, pursuant to Section
26-3.1-111(10),
C.R.S., against the employee that is received by the state department, within
five business days after receipt of the information, for the duration of the
employee's placement with the employer.
E. Employers identified in Section 30.960.A
shall provide access to county departments conducting investigations of
mistreatment of at-risk adults pursuant to Section
26-3.1-103 (1.3), C.R.S and
Section 30.510.J
F. Authorized
requestors shall register prior to requesting a CAPS check to allow for
verification of the authorized requestor's legal authority to request the
check.
1. The authorized requestor is
responsible for ensuring the registration information is up to date.
2. There shall be no fee to the authorized
requestor to register.
3. The
authorized requestor shall only access the CAPS check system for business needs
related to CAPS check requirements.
a. All
authorized requestors must electronically sign the security and confidentiality
agreement when registering and follow the requirements therein.
b. All authorized requestors shall not share
username or password information with any other individual, regardless of
whether that individual is also an authorized requestor. Each authorized
requestor must have their own username and password.
c. Violations of security and confidentiality
requirements may result in loss of access to the system, at the discretion of
the state department.
G. Using a form developed by the State
Department, authorized requestors shall obtain written authorization and any
required identifying information from the new or existing employee or volunteer
or potential appointee prior to requesting a CAPS check. Required identifying
information necessary to request the CAPS check includes information such as
name, date of birth, and email address, etc.
1. The form must be completed and signed by
the employee, volunteer, or potential appointee.
2. Knowingly providing inaccurate information
on the written authorization form is a class 2 misdemeanor as set forth in
Section 26-3.1-111(6)
(e.7), C.R.S.
3. The CAPS Check
Unit (CCU) may request the employee's, volunteer's, or potential appointee's
written authorization form from the employer or the court as supporting
documentation.
H. The
state department of human services does not determine:
1. Which employees or volunteers provide
direct care as described in Section 30.100 and pursuant to Section
26-3.1-101 (3.5), C.R.S. employers
are responsible for determining which employees and/or volunteers will provide
direct care, thereby requiring CAPS checks. Employers shall make determinations
based on the definition of direct care outlined in Section 30.100 and/or any
guidance or regulations set forth by the employer's oversight agency.
2. Whether a substantiated finding reported
on an initial CAPS check and/or a flagged check disqualifies an employee from
providing care to at-risk adults. Employers are responsible for determining
whether the results of the CAPS check disqualify the employee or volunteer from
employment. Employers shall make determinations based on any internal processes
and/or any guidance or regulations set forth by the employer's oversight
agency.
I. Authorized
requestors shall request a CAPS check using an online or hard copy form
developed by the State Department.
1. If more
than thirty (30) days have elapsed between an employer's request for a CAPS
check for a potential employee or volunteer, and the employer's decision to
initiate hiring, the employer must request a new CAPS check prior to hiring the
employee or volunteer.
2. If an
employee or volunteer leaves employment but is considered for rehire after more
than thirty (30) days have elapsed since leaving employment, the employer must
request a new CAPS check prior to rehire.
3. If the court does not appoint the
potential appointee as a guardian or conservator but the person is considered
for appointment as a guardian or conservator of an at-risk adult more than
thirty (30) days after the court's case was closed, the court must request a
new CAPS check prior to appointment in a new case. Until such time as the court
closes the case or is no longer considering the potential appointee's original
petition for appointment, the 30-day time limitation on the CAPS check does not
begin to run.
a. If a potential appointee is
nominated for appointment as a guardian or conservator of an at-risk adult in
multiple courts, each court must conduct its own CAPS check on said potential
appointee to ensure that each court is notified in the event of a flagged
check.
b. Potential appointees who
are professionals, are defined as, "an individual or entity engaged in the
business of providing services as guardian or conservator, who is not related
to the respondent in a case by blood, law, or marriage. Such professionals
usually act as guardian or conservator for two or more individuals". If said
professional appointee is nominated for appointment as a guardian or
conservator:
i. Of an at-risk adult in
multiple courts, each court must conduct its own CAPS check on said appointee
to ensure each court is notified in the event of a flagged check.
ii. For multiple at-risk adults in a single
court, that court will only need to conduct one CAPS check on said potential
appointee.
4.
If an authorized requestor requests the results of a previously completed CAPS
check to be re-sent:
a. If the request is
submitted to the state department within 180 days of the completion of the CAPS
check, the CAPS check results will be re-sent to the authorized requestor at no
additional cost.
b. If the request
is submitted to the state department more than 180 days after initial
completion, a new CAPS check request may need to be submitted by the authorized
requestor, as described in Section 30.960.I and J, based on the circumstances
of the request and the discretion of the state department
5. If the information provided for the CAPS
check is incomplete the CCU may request additional information from the
employer or the court.
a. If the additional
information is not provided by the employer or the court the CCU will close the
request and will not conduct the CAPS check.
b. the fee for the CAPS check shall not be
refunded to the employer or the court.
6. If an employer or the court provides
information the CCU has reason to believe is inaccurate:
a. The CCU will contact the employer or the
court regarding the information believed to be inaccurate.
b. The CCU may request the employer or the
court to provide the written authorization form to the CCU. If the employer or
the court does not provide the written authorization form, the CCU will close
the request and will not conduct the CAPS check. The CAPS check fee will not be
refunded.
c. If the CCU identifies
a pattern of inaccurate information being provided by an employer or court, the
CCU will implement steps to address the pattern, which may include, but are not
limited to, contacting the agency administrator, requiring submission of the
written authorization form with each CAPS check request, and/or requesting
legal assistance to resolve the concerns.
d. Knowingly providing inaccurate information
on a CAPS check request is a class 2 misdemeanor, as outlined in Section
26-3.1-111(6)
(e.7), C.R.S.
7. If a
screening company that requests CAPS checks on behalf of an employer provides
information the CCU has reason to believe is inaccurate:
a. The CCU will contact the employer and/or
screening company regarding the information believed to be
inaccurate.
b. The CCU may request
the screening company to provide the written authorization form to the CCU. If
the screening company does not provide the written authorization form, the CCU
will close the request and will not conduct the CAPS check. The CAPS check fee
will not be refunded.
c. If the CCU
identifies a pattern of inaccurate information being provided by a screening
company hired by an employer, the CCU will implement steps to address the
pattern, which may include, but are not limited to, contacting the employer
that hired the screening company, requiring submission of the written
authorization form with each CAPS check request, prohibiting the screening
company from requesting CAPS checks, and/or requesting legal assistance to
resolve the concerns.
d. Knowingly
providing inaccurate information on a CAPS check request is a class 2
misdemeanor, as outlined in Section
26-3.1-111(6)
(e.7), C.R.S.
8.
Submitting a CAPS check request for an individual who is not being considered
for an employee or volunteer position providing direct care to at-risk adults
or providing care through Consumer Directed Support Services or for a person
who is not a potential appointee is a class 2 misdemeanor, as outlined in
Section 26-3.1-111(6)
(e.3), C.R.S.
J. The fee
for the CAPS check shall be:
1. Established to
provide adequate revenue to support all direct and indirect costs related to
the administrative appeals processes for substantiated perpetrators and the
CAPS checks.
2. No greater than
$16.50 per CAPS check, unless the State Board of Human Services approves an
increased fee based upon increased direct and indirect costs of the
administrative appeals and CAPS checks.
a. The
current CAPS check fee shall be posted ON THE CAPS check website.
b. The current CAPS check fee may be adjusted
with THIRTY (30) days' notice, provided via the CAPS check website.
3. Paid by the authorized
requestor at the time of the request.
a. If
the authorized requestor chooses to request the CAPS check via the online form,
payment must be made through the online payment system at the time of the
request. A CAPS check will not be completed without payment.
b. If the authorized requestor chooses to
request the CAPS check via first class mail, payment in the form of an agency
warrant or bank check must be attached to the form. A CAPS check will not be
completed without payment.
c.
Authorized requestors may choose to request that the employee, volunteer, or
potential appointee reimburse the authorized requestor for the cost of the
check.
K. The
State Department shall complete the CAPS check and respond to the employer's
request as soon as possible, but no later than five (5) business days following
the receipt of the request. The State Department shall complete the CAPS check
and respond to the court's request as soon as possible, but no later than seven
(7) calendar days following the receipt of the request.
1. The State Department shall provide the
CAPS check results to the authorized requestor via email, unless receipt of the
results via first class mail is requested.
a.
If the employee is also the employer who requested the CAPS check on
themselves, such as a facility administrator or owner, or an independent owner
operator, and the employee/employer is determined not to have a substantiated
finding of mistreatment, the results will be provided to the
employee/employer.
b. If the
employee is also the employer who requested the CAPS check on themselves, such
as a facility administrator or owner, or an independent owner operator, and the
employee/employer is determined to have a substantiated finding of
mistreatment, the results will be provided to the employee/employer and to the
parent company and/or oversight agency(ies).
L. The CAPS check results shall indicate:
1. Whether there is or is not a substantiated
finding for the employee, volunteer, or potential appointee;
2. The purposes for which the information in
CAPS may be made available;
3. The
consequences of improper release of the information in CAPS;
4. If the person does have a substantiated
finding, the results will also provide the date(s) of the substantiated
finding(s), county department(s) that completed the investigation(s), the
type(s) and severity level(s) of the mistreatment, and the substantiated
perpetrator's right to appeal and the time frame allowed by rule to request an
appeal. No additional information about the mistreatment and/or substantiated
finding will be provided through the CAPS check process.
5. For CAPS check results for the court in
which there is a substantiated finding, the CAPS check results will also
include whether there is an active appeal at the time of the court's request.
No additional information about the mistreatment and/or substantiated finding
will be provided through the CAPS check process.
M. Notification of any flagged check shall be
provided to the authorized requestor, the employer, or to the
employee/employer's parent company and/or oversight agency(ies), as outlined in
Section 30.960.K.1.b, at the time the new finding is completed in CAPS, after
verification that the flagged check relates to a current employee or
volunteer.
N. Findings shall not be
included in CAPS check results when:
1. The
finding was made prior to July 1, 2018 when due process for substantiated
perpetrators began, as outlined in Section 30.910; and/or,
2. The finding was expunged or overturned
through the appeals process, as outlined in Section 30.920; and/or,
3. A positive match of at least two data
points between the employee and a substantiated perpetrator in CAPS, such as
name, date of birth, or address, cannot be determined with certainty.
O. An employer, or a person or
entity conducting screening on behalf of an employer, shall obtain CAPS checks
for the purpose of informing hiring and employment decisions.
1. A staffing agency providing direct care
staff to an employer described in Section 30.960.A and pursuant to Section
26-3.1-111(7),
C.R.S. shall provide the employer with a copy of the official results of the
CAPS check and a copy of any official flagged checks, as described in Section
30.960.M and pursuant to Section
26-3.1-111(10),
C.R.S., within five business days after receipt of the information, for the
duration of the employee's placement with the employer.
2. 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.
P. Information
obtained through a CAPS check by an authorized requestor is confidential and
shall only be released pursuant to Section
26-3.1-111(6)(d),
C.R.S.
1. CAPS checks shall only be released
by the state department to an employer, a person or entity conducting employee
screening on behalf of an employer, or to a county department conducting CAPS
checks on potential APS employees, as outlined in Section 30.320.
2. An employer, or a person or entity
conducting employee screening on behalf of an employer, may lawfully release
information received through a CAPS check as outlined below:
a. To the employer;
b. 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 in
42 CFR
164.501 pursuant to Section
12-20-401, C.R.S.; or,
c. 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, C.R.S.
3. Section
26-3.1-111(6)(e),
C.R.S., creates a criminal penalty for 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 C.R.S. Title 26, Article 3.1.
4. An employer, or a person or entity
conducting employee screening on behalf of an employer, who releases the
results of a CAPS check to anyone other than those directly involved in the
employer's hiring process, except as required of staffing agencies in Section
30.960.O.2., violates the law pursuant to Section
26-3.1-111(D)(I)(B),
C.R.S.
5. The provisions of this
subsection are in addition to and not in lieu of other applicable federal and
state laws or requirements concerning protected confidential information.
Employers are responsible for ensuring adherence to applicable federal and
state requirements regarding the use of information obtained during any
pre-employment screening and/or hiring processes.
