DEPARTMENT OF LABOR AND EMPLOYMENT REGULATIONS CONCERNING APPEALS 7 CCR 1107-9 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________

9.1 Statement of Authority, Purpose, and Incorporation by Reference

1. This regulation is adopted pursuant to the authority in section C.R.S. § 8-13.3-501 et seq., and is intended to be consistent with the requirements of the State Administrative Procedures Act, C.R.S. § 24-4-101 et seq. (the “APA”), and the Paid Family and Medical Leave Insurance Act, C.R.S. § 8-13.3-501 through 524 (the “FAMLI Act”).

2. The general purpose of these rules is to exercise authority of the Colorado Department of Labor’s FAMLI Division (the “Division”) to enforce and implement the Paid Family and Medical Leave Insurance Act (C.R.S. § 8-13.3-501 et seq.) with regard to administrative determinations and hearing appeals.

3. Article 13.3, Title 8 (2023), Article 12, Title 5 (2023), and Article 4, and Title 24 (2023), C.R.S. are hereby incorporated by reference. Earlier versions of such laws may apply to events that occurred in prior years. Such incorporation excludes later amendments to or editions of the statutes. These statutes and regulations are available for public inspection at the Colorado Department of Labor and Employment, Division of Family and Medical Leave Insurance, 633 17th Street, Denver, CO 80202. Copies may be obtained from this Division at a reasonable charge, or can be accessed electronically from the website of the Colorado Secretary of State. Pursuant to C.R.S. § 24-4-103(12.5)(b), the agency shall provide certified copies of the statutes and regulations incorporated at cost upon request or shall provide the requestor with information on how to obtain a certified copy of the material incorporated by reference from the agency originally issuing the statutes. All Division Rules are available to the public at famli.colorado.gov. Where these Rules have provisions different from or contrary to any incorporated or referenced material, the provisions of these Rules govern so long as these are consistent with Colorado statutory and constitutional provisions.

4. If any part of these rules is held invalid, the remainder shall remain valid, and if any part is held not wholly invalid, but in need of narrowing, it will be retained in narrowed form.

9.2 Definitions

1. Unless otherwise indicated, terms used here that are defined in the FAMLI Act have the same definition as they do under the FAMLI Act.

2. “Administrative Decision” means a written decision made by the Division’s administrative staff other than the hearings officers.

3. “Appellant” means the party making the request for a FAMLI hearing officer to review a determination or redetermination, as those terms are defined in this Rule.

4. “Authorized representative” has the same meaning as 7 CCR 1107-8, Section 8.2.2.

5. “Claimant” means a person who has filed a FAMLI Claim, regardless of whether the person is a covered individual pursuant to C.R.S. § 8-13.3-503(3).

6. “Correct address” has the same meaning as 7 CCR 1107-8, Section 8.2.6.

7. “Determination” or “redetermination” means an administrative decision or a private plan decision that is designated as a “determination” or “redetermination” or is a written decision that (1) explicitly or effectively denies all or part of a FAMLI Claim, (2) imposes fines, fees, or penalties, (3) identifies an overpayment or requires repayment of benefits, (4) awards damages, or other remedies, (5) denies or grants all or part of the relief requested in an accepted grievance, investigation, or complaint, or (6) withdraws the approval of a private plan or finds that a private plan committed a violation of the FAMLI Act or its implementing regulations. “Determination” does not include a Division notice that only informs a claimant or applicant that an application is incomplete or requests additional information.

8. “Division” means the Paid Family and Medical Leave Insurance Division of the Department of Labor and Employment created pursuant to C.R.S. § 8-13.3-508.

9. “FAMLI Appeals Unit” or “Appeals Unit” means the work unit presently within the Compliance and Appeals Branch of the FAMLI Division, authorized to resolve appeals of determinations and redeterminations.

10. “FAMLI Claim” means a claim for “benefits” and “paid family and medical leave” as those terms are defined under the FAMLI Act, C.R.S. § 8-13.3-501 et seq.

11. “Good cause” has the same meaning as 7 CCR 1107-3, Section 3.2.11.

12. “Parties of record” means the appellant, the Division, parties listed on a notice of hearing, and any person added as a party by a hearing officer after a notice of hearing is issued.

13. “Party” means a person explicitly identified as a “party” in these rules or who has a right or a legally cognizable interest potentially affected by the outcome of an appeal. The Division is a party to any appeal filed with the Appeals Unit of the Division.

14. “Person” includes natural persons and entities with a recognized legal status in Colorado.

9.3 Determinations

1. The Division will issue and deliver determinations and redeterminations by U.S. first class mail or electronically to the parties at their correct addresses and include a statement regarding appeal rights.

2. The date of issuance of the Division's determination is the date the Division's determination is sent to the parties by mail or electronically to the parties, as indicated in the determination. The appeal deadlines are calculated from the Division's date of issuance.

3. Determinations shall be deemed final, and any information contained in any document or notice issued by the Division shall be deemed correct unless a party files a timely request for appeal according to these regulations.

4. No party can appeal a Division decision to a Division hearing officer unless the decision constitutes a determination. No party can appeal a determination of the Division to a court of competent jurisdiction until such party has exhausted all administrative remedies provided in these rules, including appeal to a Division hearing officer.

5. Determinations must include some explanation of the facts forming the basis for the determination, citation to relevant provisions of the law, and the date the determination was issued and a notice of appeal rights.

9.4 Filing Appeals of Determinations

1. Any party adversely affected by a determination or redetermination may appeal it. A party cannot appeal a determination that has been completely replaced by a redetermination.

2. Parties are encouraged, though not required, to use the Division's appeal form. An appeal is procedurally valid only if it: (a) is timely filed with the Division, (b) includes a copy of the determination or redetermination at issue or sufficiently identifies the determination or redetermination appealed and the date of issuance, and (c) has been signed by the party or the party's authorized representative.

3. The Division will only consider appeals filed within forty-nine (49) days of the date the Division issued the determination or redetermination in question unless an extension of time is granted consistent with Rule 9.4.6.

4. An appeal to the Division is considered “filed” with the Division when the appeal is properly sent by U.S. first class mail or electronically. Any appeal to the Division sent after 11:59 p.m. (Mountain Time Zone) is considered filed the next business day.

5. An appeal to the Division is considered “signed,” or to have a “signature,” if it has either an ink signature, a scanned signature, an electronically drawn or generated signature, a unique mark belonging to a specific person, or a typed name entered by the party or authorized representative in the signature area. By signing in any such fashion, the individual is deemed to have agreed and assented that the document is signed by such party.

6. Unless otherwise specified, deadlines in this rule may be extended up to forty-two (42) days for good cause and up to ninety-one (91) days for extraordinary circumstances.

9.5 Preliminary Issues for Filed Appeals

1. Upon receiving an appeal, the Appeals Unit will determine as soon as practicable whether the appeal meets the requirements for a procedurally valid appeal. If the appeal is not procedurally valid, the Appeals Unit will send a notice of the procedural deficiency and provide the appellant seven (7) days to respond to the notice of deficiency. The Appeals Unit can take any action it deems appropriate to address the deficiency, including dismissal of an untimely appeal. For good cause, the Appeals Unit may grant an extension of time not exceeding fourteen (14) days for a response to the notice of deficiency.

2. Once an appeal is determined to be procedurally valid, the Appeals Unit will open a case in the docketing system and send a notice to the appellant and the Division that the appeal has been accepted. The notice of acceptance will also be sent to any person that has received a notice of a determination or claim that is the subject of an appeal. The Appeals Unit will assign a hearing officer who will oversee the manner in which the appeal will be handled, including scheduling and sending a notice of any necessary hearings. A hearing will be scheduled to occur within thirty-five (35) days after an appeal is accepted as procedurally valid unless an extension of time is granted consistent with Rule 9.4.6. The filing of an appeal will not suspend or terminate a FAMLI Claim award unless and until a hearing officer modifies or overturns a determination at issue in an appeal.

3. Upon a request by a party of record or the hearing officer’s own initiative, the hearing officer may convene a prehearing conference to discuss the issues on appeal, questions related to party status, the evidence to be presented, requests for language interpretation or other reasonable accommodations, and any other relevant matters that may simplify the proceedings, including resolving issues without a hearing if the material facts are undisputed.

4. Motions to disqualify a hearing officer must be made and addressed at the earliest opportunity consistent with the provisions of C.R.S. § 24-4-105(3), including the requirement of a good faith affidavit explaining the alleged disqualifying reasons. An unreasonable delay in requesting a disqualification can be considered a waiver of any objection to the assignment of a claim to a hearing officer. Previous adverse rulings will not be considered as a valid basis for disqualification.

9.6 Discovery, Subpoenas, and Evidence for Hearings

1. Within fourteen (14) days after an appeal has been accepted as procedurally valid, the Division or private plan shall file with the Appeals Unit all the evidence upon which it relied when making the determination at issue unless such evidence cannot be sent to a party consistent with C.R.S. § 8- 13.3-516 and 7 CCR 1107-3, Section 3.8.10. Confidential documents and information shall not lose any protections from disclosure solely because an appeal was filed. The hearing officer may take any action the hearing officer deems necessary to ensure confidentiality consistent with C.R.S. § 8-13.3-516 and 7 CCR 1107-3.

2. Only the appellant, the Division, persons admitted as parties to an appeal, authorized representatives, and witnesses they call may participate in a hearing before the Division and have access to the documents filed as part of the appeal. Parties may submit relevant testimonial and documentary evidence to the hearing officer in accordance with deadlines imposed by the Division or the assigned hearing officer.

3. Whenever a party files any documents with the Division, the party must also send the documents simultaneously to all parties of record. Evidence to be presented at a hearing must be sent to all parties of record at least ten (10) days before the hearing begins or as otherwise directed by a hearing officer. Failure to send documents to all other parties of record may be grounds for the hearing officer to limit issues or the presentation of evidence or both as determined by the hearing officer’s sound discretion in the totality of circumstances.

4. No party may seek discovery without approval from the hearing officer and only upon a clear showing that the discovery is appropriate and necessary. To establish a clear showing, the party seeking discovery must (1) present sufficient evidence of a legitimate dispute of a material fact and (2) clearly articulate the need for and appropriateness of the requested discovery to resolve the factual dispute.

5. The hearing officer shall have the power to issue subpoenas to compel the attendance of witnesses and the production of documents deemed necessary as evidence to resolve the pending appeal.

6. If a party or witness fails to obey a subpoena issued by the hearing officer, a party may apply to any district court of this state to order compliance with the subpoena. The court may exercise its power to issue a contempt citation to a person who fails to obey the order.

9.7 Hearings

1. The hearing officer shall have the power and authority to call, preside at, conduct hearings, and ensure the appeal process is fair to all parties on a case-by-case basis. Hearings will be conducted virtually with internet and telephone access. The hearing officer has the power to administer oaths and affirmations, take depositions, certify to official acts, and to take any other reasonable steps the hearing officer deems necessary to resolve the pending appeal and control the hearing.

2. The hearing officer shall not communicate with a party unless all parties are present or simultaneously receive the hearing officer’s verbal or written communication.

3. Hearings shall be conducted informally with as few technical requirements as possible. Only parties of record to the appeal, and authorized representatives, may appear at hearings and present evidence. The hearing officer shall control the evidence taken during a hearing in a manner consistent with the due process rights of all the parties and to provide a fair hearing.

4. A hearing officer may make a finding of fact based on hearsay evidence only if it is reliable, trustworthy, and probative. When deciding whether to accept hearsay as evidence, the hearing officer may consider some or all of the following non-exclusive factors:

A. Whether the statement was written and signed;

B. Whether the statement was sworn to by the declarant;

C. Whether the declarant was a disinterested witness or had a potential bias;

D. Whether the hearsay statement is denied or contradicted by other evidence;

E. Whether the declarant is credible;

F. Whether there is corroboration for the hearsay statement;

G. Whether the case turns on the credibility of the witnesses;

H. Whether the party relying on the hearsay offers an adequate explanation for the failure to call the declarant to testify; and I. Whether the party against whom the hearsay is used had access to the statements prior to the hearing or the opportunity to subpoena the declarant.

5. The hearing officer must preside impartially over administrative proceedings and hearings. The hearing officer may provide limited procedural guidance to parties so long as the hearing officer does not become an advocate for any of the parties.

6. Parties of record are entitled to at least fourteen (14) days advance notice of a hearing and advance notice of the issues that may be considered at a hearing according to the schedule ordered by the hearing officer. In setting a hearing date, the hearing officer shall ensure that the parties of record have had reasonably sufficient opportunity to exchange exhibits and prepare for hearing. The hearing officer shall not permit a party of record to present evidence on issues at a hearing that have not been disclosed to all other parties of record before the hearing except to prevent obvious injustice. The hearing officer has reasonable discretion to control the administrative proceedings and ensure that the parties of record receive a fair hearing, including postponing hearings and granting additional time to the parties of record where appropriate.

7. All testimony at a hearing must be recorded by the Division but need not be transcribed unless the hearing officer’s decision is appealed.

9.8 Appeal Decisions and Burdens of Proof

1. After conducting a fair hearing, the hearing officer shall decide each relevant issue properly raised during the proceedings and necessary to resolve the appeal. The hearing officer shall issue a written decision based solely on the evidence presented during the hearing and include findings of fact, conclusions of law, and an order. In deciding disputed issues of fact, the hearing officer shall not give deference to the Division’s factual determinations. In deciding disputed issues of law, the hearing officer shall adhere to Department regulations and give some consideration to the Division’s reasonable interpretations of the statute and regulations.

2. The party seeking a FAMLI Claim award or damages, the imposition of a fine, penalty, fee or interest, or any other relief, has the burden of proof to show the relief should be granted by a preponderance of the evidence. Where the Division proves the grounds for imposing fines, penalties, or fees, the amount of such fines, penalties, or fees shall be overturned or modified only if the employer or private plan proves that the Division abused its discretion.

3. The hearing officer’s decision shall be made as soon as practicable after a hearing and constitutes a final agency action pursuant to C.R.S. § 24-4-106. The Division shall promptly send a copy of the hearing officer’s decision to each party of record.

4. The hearing officer will issue written decisions in compliance with C.R.S. § 8-13.3-516 and will not disclose protected health information, the reason for leave, and wage replacement benefit amounts beyond the information necessarily and appropriately disclosed to the parties during an appeal proceeding.

5. Any party of record in the administrative proceeding may appeal the hearing officer’s decision only by commencing an action for judicial review in a district court of competent jurisdiction within thirty-five (35) days after the date the decision was sent to the party. Judicial review is limited to appeal briefs and the record designated on appeal.

6. If the Division or a court reverses or modifies a denial of a FAMLI Claim, the Division or private plan will pay the benefits as soon as practicable but no later than five (5) business days after the order awarding benefits.

9.9 Withdrawal and Dismissal of Appeals

1. If the party that filed the appeal does not participate in the hearing, the appeal may be dismissed if the hearing officers deems the appeal abandoned.

2. The appellant may withdraw their appeal at any time. If the appellant withdraws their appeal, they may not appeal the determination again unless the appellant demonstrates that denying the right to appeal will result in an obvious injustice in light of the totality of circumstances. If the appellant withdraws their appeal during the hearing, the hearing officer shall inform the appellant that withdrawal of their appeal will render the determination final. _________________________________________________________________________ Editor’s Notes History New rule eff. 01/01/2024.