Tracking #2010-01108 
FA/P 1/7/11, eff. 3/2/11

I:/10102502.rtf
[I:/10102502.doc]

[Note:  Statement of Basis and Purpose has been incorporated with Tracking #2010-01109 (Rule-making #10-8-26-1)] 

(12 CCR 2509-3) 

[Instructions: replace lines 1136038 through 1136091.]
7.202.604 Notice to the Person Found to be Responsible for Child Abuse or Neglect [Rev. eff. 3/2/11]
A.  The county department shall notify the person confirmed as responsible for child abuse or neglect of its finding by first-class mail to the responsible person's last known mailing address, using a form approved by the State Department. The county department shall retain a copy of the notice in the case file showing the date of mailing.
B.  At a minimum, the notice shall include the following information:
1.  The type and severity level of the abuse or neglect, the date the incident was reported to the county department, which county department filed the report, the date the county confirmed the report in the State Department’s automated system, and information concerning persons or agencies that have access to the report.
2.  The circumstances under which information contained in the State’s automated system will be provided to other individuals or agencies.
3.  How to access the county’s dispute resolution process.  Counties are authorized to offer a county dispute resolution process to persons alleged to be responsible for an incident of child abuse or neglect.
4.  The right of the person found responsible to request a state level appeal as set forth in Section 7.202.605 through 7.202.608. The county shall provide the State Department approved appeal form to the person. 
5.  Notice that the scope of the appeal is limited to challenges that the finding(s) are not supported by a preponderance of the evidence or that the actions found to be child abuse or neglect do not meet the legal definitions of child abuse or neglect. The State Department will be responsible for defending the determination at the State level fair hearing.
6.  A full explanation of all alternatives and deadlines contained in Sections 7.202.605 through 7.202.608.
7.202.605  State-Level Appeal Process [Rev. eff. 3/2/11]
A.  Persons found responsible for an incident of child abuse or neglect by the county department shall have the right to a state level appeal to contest the finding. The request for appeal of the decision shall first be submitted to the State Department unit designated to handle such appeals. If the State Department and the Appellant are unable or unwilling to resolve the appeal in accordance with the provisions set forth below in this section, the State Department shall forward the appeal to the Office of Administrative Courts (OAC) to proceed to a fair hearing before an Administrative Law Judge (ALJ). 
B.  The grounds for appeal shall consist of the following: 
1.  The findings are not supported by a preponderance of credible evidence; or,
2.  The actions ultimately found to be abusive or neglectful do not meet the statutory or regulatory definitions of child abuse or neglect.
C.  The person confirmed to be responsible for committing child abuse or neglect shall have ninety (90) calendar days from the date of the notice of confirmed finding to appeal the finding in writing to the State Department. The written appeal shall be submitted on the State approved form provided by the county and shall include: 
1.  The contact information for the Appellant; 
2.  A statement detailing the basis for the appeal; and, 
3.  The county department notice of finding of responsibility for child abuse or neglect. 
D.  The state level appeal process must be initiated by the person responsible for child abuse or neglect or his/her legal representative. The Appellant need not hire an attorney to appeal the county determination. If the individual is a minor child, the appeal may be initiated by his/her parents, legal custodian, or legal representative. 
E.  The appeal must be submitted to the State Department within ninety (90) calendar days of the date of the notice of confirmed finding. If the appeal is filed more than ninety (90) calendar days from the date of the notice of confirmed finding, the Appellant must show good cause for not appealing within the prescribed period as set forth in Section 7.202.3, E. Failure to request State review within this ninety-day period without good cause shall be grounds for the State Department to not accept the appeal. 
F.  The confirmed report shall be utilized for safety and risk assessment, employment, and background screening by the State Department while the administrative appeal process is pending.
G.  The Appellant shall have the right to appeal even if a dependency and neglect action or a criminal prosecution for child abuse is pending arising out of the same report. The State Department shall hold in abeyance the administrative process pending the outcome of the dependency and neglect or criminal action if requested by the Appellant or if the State Department determines that awaiting the outcome of the court case is in the best interest of the parties. If the Appellant objects to the continuance, the continuance shall not exceed one hundred eighty (180) days without the Appellant having the opportunity to seek review of the extended continuance by an ALJ.  The pendency of other court proceeding(s) shall be considered to be good cause to continue the appeal past the one hundred eighty (180) day timeframe. 
H.  The following circumstances shall be considered to be admissions to the factual basis of the finding of responsibility for child abuse or neglect entered into the TRAILS data system and shall be considered to be conclusive evidence of the person’s responsibility for the act of child abuse or neglect to support a motion for summary judgment submitted to the OAC: 
1.  When a Dependency and Neglect Petition has been adjudicated against or a deferred adjudication entered against the Appellant on the basis of Sections 19-3-103 or 19-3-102 (1)(a), (b), or (c), C.R.S., arising out of the same factual basis as the founded report in TRAILS; or,
2.  The Appellant has been found guilty of child abuse, or has pled guilty or nolo contendere to child abuse as part of any plea agreement including, but not limited to, a deferred judgment agreement, arising out of the same factual basis as the founded report in TRAILS. 
3.  The Appellant has been found guilty or has pled guilty or nolo contendere to a domestic violence related or alcohol traffic related offense arising out of the same factual basis as the founded report in TRAILS. 
I.  When an Appellant requests an appeal, the State Department shall request the records relied upon in making the determination from the county department responsible for entering the finding, which has been appealed. The county department shall submit the record to the State Department as soon as practicable within the time frame requested by the Department. 
J.  After the Appellant requests an appeal, the State Department shall inform the Appellant regarding the details of the appeal process, including timeframes and contact information. 
1.  The Appellant, as the party in interest, shall have access to the county record in order to proceed with the appeal. Appellant’s use of the county file for any other purpose is prohibited unless otherwise authorized by law. 
2.  Prior to providing access to the Appellant, the State Department shall redact identifying information contained in the county file to comply with state and federal law regarding the confidentiality of child abuse or neglect records or other protected information including, but not limited to, reporting party name(s) and addresses, Social Security Number, foster parent identifying information, and information pertaining to other parties in the case that the appellant does not have a legal right to access. 
K.  The State Department is authorized to enter into settlement negotiations with the Appellant as part of the litigation process. The State Department is authorized to enter into settlement agreements that modify, overturn or expunge the reports as reflected in the State portion of the TRAILS database. The State Department is not authorized to make any changes in the county portion of the TRAILS database. In exercising its discretion, the State Department shall take into consideration the best interests of children, the weight of the evidence, the severity of the abuse or neglect, any pattern of abuse or neglect reflected in the record, the results of any local court processes, the rehabilitation of the Appellant, and any other pertinent information. 
L.  The State Department and the Appellant shall have one hundred twenty (120) days from the date that the State Department receives the appeal to resolve the issue(s) on appeal. The 120 day time limit may be extended by agreement of both the Appellant and the State Department if it is likely that the additional time will result in a fully executed settlement agreement or resolution of the appeal. 
M.  As soon as it is evident within the 120 days that the Appellant and the State Department will not resolve the issue(s) on appeal, the State Department shall forward a copy of the Appellant’s original appeal document(s) to the Office of Administrative Courts (OAC) in order to initiate the OAC fair hearing process. 
N.  If, by the end of the 120 day period, the State Department has been unable to contact the Appellant using the information submitted by the Appellant, including by first class mail, and the Appellant has not contacted the State Department, the appeal shall be deemed abandoned. The finding entered by the county department shall be upheld in the State automated data system without further right of appeal. The State Department shall notify the Appellant of this result by first class mail to the address submitted by the Appellant. 
7.202.606  State Fair Hearing Before the Office of Administrative Courts [Rev. eff. 3/2/11]
A.  When the OAC receives the appeal documents from the State Department, the OAC 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 OAC shall determine the date for the hearing. Following the scheduling conference, the OAC 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 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 ALJ. 
3.  The notice of issues shall include the following: 
a.  The specific allegations(s) that form the basis of the county department’s determination that the Appellant was responsible for child abuse or neglect; 
b.  The specific type and severity of child abuse asserted against Appellant and the legal authority supporting the determination; and, 
c.  To the extent that the State Department determines that the facts contained in the county record support a modification of the type or severity of child abuse or neglect 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 finding(s). 
4.  The Appellant shall respond to the State Department’s submittal by providing the factual and legal basis supporting the appeal to the State Department and to the OAC. 
5.  If the Appellant fails to participate in the scheduling conference referenced above or fails to submit the response referenced herein, the OAC shall deem the appeal to have been abandoned by the Appellant and render an Initial Decision Dismissing 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 ALJ shall not consider the motion to be confessed and shall render a decision based on the merits of the motion. 
B.  The ALJ 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 child abuse or neglect indicated in the notice of issues provided by the State Department. The TRAILS report is not the only acceptable evidence for establishing 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 ALJ 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 OAC 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 confirmed 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 OAC 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 ALJ allows additional time to submit documentation, the ALJ shall take the matter under advisement. After considering all the relevant evidence presented by the parties, the ALJ 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 determination. The ALJ shall have the authority to modify the type and severity level of the child abuse or neglect finding to meet the evidence provided at the hearing. The ALJ shall not order the county to modify its record; rather, the State Department shall indicate the outcome of the appeal in its portion of the TRAILS database. 
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 OAC 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 ALJ shall enter an Initial Decision Dismissing Appeal. In accordance with the procedures set forth in Section 7.202.608, the Office of Appeals may reinstate the appeal for good cause shown by the Appellant. 
7.202.607  Transition to the New Appeal Process [Rev. eff. 3/2/11] 
A.  On or after March 31, 2011, all new appeals shall be submitted to the CDHS section authorized by the Executive Director to process these appeals, using the State approved appeal form provided to individuals who have been found responsible for an incident of child abuse or neglect. 
B.  If an individual submits a request for a record review or a fair hearing directly to the OAC on or after March 31, 2011, the OAC shall not begin to process that appeal and shall, instead, transfer the appeal request to the CDHS section authorized by the Executive Director to process these appeals. 
C.  If an individual requested a fair hearing before an ALJ prior to the effective date of these rules, that appeal shall continue in accordance with the rule provisions in effect at the time that the request was received by the OAC. 
D.  If an individual requested a record review by an ALJ prior to the effective date of these rules and the matter has not yet reached the decision stage by the ALJ, the individual shall be notified that she/he has the option of requesting the Department to process the appeal under the revised process. 
7.202.608  State Department Office of Appeals Functions [Rev. eff. 3/2/11] 

=== 

[Instructions: replace line 1136096.]
E.  In any action in any court challenging a county’s confirmed report of child abuse or neglect, the State Department will defend the statutes, rules, and state-mandated procedures leading up to the confirmation, and will defend all county actions that are consistent with statutes, rules, and state-mandated procedures. The State Department shall not be responsible for defending the county department for actions that are alleged to be in violation of, or inconsistent with, state statutes, state rules or state-mandated procedures.

*****************