DEPARTMENT OF EARLY CHILDHOOD Administrative Appeals for the Colorado Department of Early Childhood ADMINISTRATIVE APPEALS RULES AND REGULATIONS 8 CCR 1406-1 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ 6.100 AUTHORITY These rules are adopted pursuant to the rulemaking authority provided in sections 26.5-1-105(1)(a), 26.5- 2-105(5), 26.5-4-108(1)(a), 26.5-4-111, and 26.5-5-314, C.R.S., and are intended to be consistent with the requirements of the State Administrative Procedures Act, section 24-4-101 through 24-4-204 (APA), C.R.S., and the Anna Jo Garcia Haynes Early Childhood Act (Early Childhood Act), Title 26.5 of the C.R.S.

6.101 SCOPE AND PURPOSE These rules govern the processes and procedures of administrative appeals for programs and services administered by the Colorado Department of Early Childhood including the County Dispute Resolution Process for the Colorado Child Care Assistance Program, Child Care Licensing determinations and decisions, and the oversight of Local Coordinating Organizations. For rules related to child care provider stringency appeals and materials and hardship waivers pursuant to sections 26.5-5-313 and 314, C.R.S., see rules located at 8 CCR 1402-1 in rule sections 2.114 - 2.118. For rules related to dispute resolutions for Colorado Shines ratings, see rules located at 8 CCR 1401-1 in rule section 1.207. For rules related to dispute resolutions for the Colorado Child Care Assistance Program, see rules located at 8 CCR 1403-1 in rule section 3.144. For rules related to dispute resolution and appeals of the Early Intervention Colorado Program, see rules located at 8 CCR 1405-1, rule sections 5.119 - 5.124. 6.102 APPLICABILITY The provisions of these rules are applicable to all current or former recipients, applicants, licensees, and administrators of the programs and services administered by the Colorado Department of Early Childhood within the scope of these rules.

6.103 DEFINITIONS A. “Administrative Law Judge” or “ALJ” means the same as described in section 24-30-1003, C.R.S. B. “Appellant” means the person appealing a county department or Department decisions. C. “Applicant” means the adult caretaker(s) or teen parent(s) who sign(s) the Colorado Child Care Assistance Program (CCCAP) application form and/or the redetermination form. D. “County Department” means a county department of human or social services as defined by section 26.5-4-103(3), C.R.S.

E. “Colorado Child Care Assistance Program” (CCCAP) means the public assistance program for child care established in Part 1 of Article 4 of Title 26.5, C.R.S. 1 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood F. “County Dispute Resolution Process” means the dispute resolution process required by section 26.5-4-108(1)(a), C.R.S.

G. “Department” means the Colorado Department of Early Childhood (CDEC) created in section 26.5-1-104, C.R.S.

H. “Department Administrative Appeals Unit” references the unit within the Department that acts as the designee for the Executive Director in actions that are administratively appealed, including review of the Administrative Law Judge’s Initial Decision, and entering Final Agency Decision affirming, modifying, reversing, or remanding the Initial Decision. I. “Final Agency Decision” means the same as a final agency action or order in compliance with the State Administrative Procedure Act, section 24-4-106(2), C.R.S., that determines the rights and obligations of the parties and represents the conclusion of the agency’s decision-making process. J. Good Cause includes, emergency conditions or circumstances beyond the control of the party seeking the modification such as, but not limited to, impossibility for a party to meet a specified deadline; incapacity of the party or representative; lack of proper notice of the availability of the appeal process; additional time required to obtain documents which were timely requested but not delivered; or other situations which would prevent a reasonable person from meeting a deadline or complying with the process without modification. Good cause does not include: excessive workload of either the party or his/her representative; a party obtaining legal representation in an untimely manner; failure to receive the Initial Decision when a party has failed to advise the Department Administrative Appeals Unit of a change of address or a correct address; or any other circumstance which was foreseeable or preventable. K. “Governing body” means the individual, partnership, corporation, or association in which the ultimate authority and legal responsibility is vested for the administration and operation of a child care facility.

L. “Initial Decision” means the written decision rendered by the Administrative Law Judge pursuant to sections 24-4-105 and 26.5-1-107, C.R.S.

M. “Licensee” means the entity or individual to which a license is issued and that has the legal capacity to enter into an agreement or contract, assume obligations, incur and pay debts, sue and be sued in its own right, and be held responsible for its actions. A licensee may be a governing body.

N. “Local Coordinating Organization” (LCO) means the entity selected by the Department pursuant to section 26.5-1-103(4), C.R.S.

O. “Office of Administrative Courts” (OAC) means the courts created in the Colorado Department of Personnel and Administration by section 24-30-1001(1), C.R.S. P. Preponderance of Evidence means credible evidence that a claim is more likely true than not. Q. “Recipient” means the same as in section 26.5-4-103(10), C.R.S. R. “Timely Request” means a request for modification of a hearing or procedural deadline made no later than one (1) business day prior to the hearing date or deadline. 6.200 GENERAL RULES FOR AN APPEAL, INITIAL DECISIONS, AND FINAL AGENCY DECISIONS A. This section applies to state-level appeals of:

2 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 1. County department decisions and Department actions concerning CCCAP benefits, including the result of a county dispute resolution conference and a county department’s failure to act concerning benefits;

2. Department actions concerning child care licenses, including Department determinations to deny, suspend, or revoke a permanent license or to make a permanent license probationary; and 3. Department determinations concerning LCO applications and agreements, including application denials and termination of coordinating agreements. 6.201 CONDUCT AND PROCEDURE OF HEARINGS A. The conduct and procedure of all hearings described in these rules are governed by the Office of Administrative Court’s Procedural Rules found at 1 CCR 104-1 (Sept. 30, 2014), herein incorporated by reference, unless specified otherwise in these rules. No later editions or amendments are incorporated. These rules are available at no cost from the Department of Personnel and Administration, 1525 Sherman St., Denver, Colorado 80203 or at https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=5911&fileName=1%20CCR %20104-1. These rules are also available for public inspection and copying at the Colorado Department of Early Childhood, 710 S. Ash St., Bldg. C, Denver, Colorado 80246. B. When the Administrative Law Judge (ALJ) dismisses an appeal, the decision of the ALJ shall be an Initial Decision, which shall not be implemented pending review by the Department Administrative Appeals Unit and entry of a Final Agency Decision pursuant to section 26.5-1-107, C.R.S.

6.202 DECISION AND NOTIFICATION A. INITIAL DECISION 1. Following the conclusion of the hearing, the Administrative Law Judge (ALJ) shall prepare and issue an Initial Decision within sixty (60) days, or as soon as possible. Once the ALJ issues the Initial Decision, the Office of Administrative Courts shall immediately deliver the Initial Decision to the Department Administrative Appeals Unit for determination of the Final Agency Decision.

2. The Initial Decision is an initial determination on whether the county department, Department, or its agents acted in accordance with, and/or properly applied, the applicable statutes and administrative rules of the Department. The ALJ has no jurisdiction or authority to determine issues of constitutionality or legality of the Department’s administrative rules.

3. The Initial Decision must advise the parties that failure to file exceptions to provisions of the Initial Decision will waive the right to seek judicial review of a Final Agency Decision which affirms those provisions.

4. The Department Administrative Appeals Unit shall serve the Initial Decision upon each party by first class mail or by electronic mail, if the parties agree to electronic service within ten (10) calendar days of receiving the Initial Decision. This is the Notice of Initial Decision. The Department Administrative Appeals Unit shall transmit a copy of the Initial Decision to the division within the Department that administers the program(s) pertinent to the appeal.

3 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 5. The Initial Decision shall not be implemented pending review by the Department Administrative Appeals Unit and entry of a Final Agency Decision. B. REVIEW BY THE DEPARTMENT ADMINISTRATIVE APPEALS UNIT The Department Administrative Appeals Unit is the designee of the Executive Director, and shall review the Initial Decision of the Administrative Law Judge (ALJ) and enter a Final Agency Decision affirming, modifying, reversing, or remanding the Initial Decision. 1. Procedure a. Any party seeking a Final Agency Decision which reverses, modifies, or remands the Initial Decision of the ALJ must file Exceptions to the Initial Decision with the Department Administrative Appeals Unit, within fifteen (15) days (plus three days for mailing) from the date the Initial Decision was mailed to the parties. Exceptions must state specific grounds for reversal, modification, or remand of the Initial Decision. The Department Administrative Appeals Unit cannot consider any arguments other than the issues raised in the appeal before the ALJ. The Department Administrative Appeals Unit cannot consider new evidence, which with reasonable diligence could have been produced at the time of the hearing or review.

b. If the Exceptions do not challenge the findings of fact, but instead assert only that the ALJ improperly interpreted or applied state administrative rules or statutes, the party filing Exceptions is not required to provide a transcript or recording to the Department Administrative Appeals Unit.

c. The Department Administrative Appeals Unit cannot consider any challenge to the facts unless a transcript and/or audio recording in lieu of a hearing transcript is provided.

d. The Department Administrative Appeals Unit shall serve a copy of the Exceptions on each party by first class mail or by electronic mail, if the parties agree to electronic service. Each party has ten (10) calendar days (plus three days for mailing) from the date Exceptions were mailed to the parties to file a written response to the Exceptions. The Department Administrative Appeals Unit shall not permit oral argument.

e. While review of the Initial Decision is pending before the Department Administrative Appeals Unit, the record on review, including any transcript or recording of testimony filed with the Department Administrative Appeals Unit, shall be available for examination by any party at the Department Administrative Appeals Unit during regular business hours.

f. For appeals of decisions related to CCCAP, the division(s) within the Department responsible for administering CCCAP may file Exceptions to the Initial Decision, or respond to Exceptions filed by a party, even though the division has not previously appeared as a party to the appeal. The division's exceptions or responses must be filed in compliance with the requirements of this rule section 6.202(B). Exceptions filed by the division that did not appear as a party at the hearing, shall be treated as requesting review of the Initial Decision upon the Department's own motion.

4 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood g. In the absence of Exceptions filed by any party or by a division within the Department, the Department Administrative Appeals Unit shall review the Initial Decision, the Office of Administrative Court’s hearing file, and if applicable, the recorded testimony of witnesses, before entering a Final Agency Decision. h. Review by the Department Administrative Appeals Unit will determine whether the Initial Decision properly interpreted and applied administrative rules of the Department, or relevant statutes, and whether the findings of fact and conclusions of law support the decision.

i. The Department’s Administrative Appeals Unit must issue a Final Agency Decision in every appeal. All Final Agency Decisions shall be made within sixty (60) days from the date that the Department’s Administrative Appeals Unit receives the Initial Decision from the Office of Administrative Courts. j. The Department Administrative Appeals Unit shall serve copies of the Final Agency Decision to all parties by first class mail or by electronic mail, if the parties agree to electronic service.

k. The effective date of the Final Agency Decision shall be the third (3rd) day after the date the Final Agency Decision is mailed to the parties, even if the third (3rd) day falls on Saturday, Sunday, or a legal holiday. The Department Administrative Appeals Unit must advise the parties of the effective date of the Final Agency Decision.

l. The Department or county department shall initiate action to comply with the Final Agency Decision within three (3) business days after the effective date of the Final Agency Decision. The Department shall comply with the Final Agency Decision even if reconsideration is requested, unless the effective date of the Final Agency Decision is postponed by order of the Department Administrative Appeals Unit or a reviewing court.

m. The Final Agency Decision must notify the parties of their right to seek judicial review pursuant to section 24-4-106, C.R.S.

2. Transcripts a. The party filing Exceptions challenging the ALJ’s findings of fact is responsible for obtaining a transcript unless they file for permission to file an audio recording (see rule subsection 3, below).

b. To obtain a transcript, a party must:

1) request the audio recording of the hearing from the Office of Administrative Courts;

2) pay for a transcriptionist of their choosing to transcribe the audio recording into a transcript; and 3) file the transcript by the due date for filing Exceptions. 5 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood c. Transcripts must be filed with a party's Exceptions. A party may request additional time for filing Exceptions in order to obtain the transcript. Any transcript received by the Department Administrative Appeals Unit after the due date for filing Exceptions stated in the Notice of Initial Decision or the deadline imposed by the Department Administrative Appeals Unit if a request for extension of time was granted, will not be considered.

3. Audio Recording a. If a party cannot afford a transcript, the party may request permission to file an audio recording. The request must be filed in writing with the Department Administrative Appeals Unit prior to the due date for filing Exceptions, and include:

1) An explanation as to why they cannot afford a transcript; and 2) Why it is essential for the Department Administrative Appeals Unit to listen to testimony of a specific witness or witnesses. b. A County Department's request to submit an audio recording instead of a transcript must state that funds are not available in the county department's operating budget to pay for preparation of a transcript and the request must be certified by the county department director.

c. Any submission of an audio recording without first obtaining permission from the Department Administrative Appeals Unit will not be considered. d. The requesting party is solely responsible for requesting the copy of the audio recording from the Office of Administrative Courts and for filing the audio recording with the Department Administrative Appeals Unit by the due date provided in the Notice of Initial Decision unless an extension of time has been granted by the Department Administrative Appeals Unit.

6.203 RECONSIDERATION OF FINAL AGENCY DECISION A. A motion for reconsideration of a Final Agency Decision may be granted by the Department Administrative Appeals Unit only for the following reasons: 1. A showing of good cause for failure to file Exceptions to the Initial Decision within the fifteen (15) (plus three days for mailing) day period allowed by rule section 6.202(B)(1)(a); or 2. Upon a showing that the Final Agency Decision is based upon a clear or plain error of fact or law. An error of law means failure by the Department Administrative Appeals Unit to follow a rule, statute, or court decision which controls the outcome of the appeal. 3. No motion for reconsideration shall be granted unless it is filed in writing with the Department Administrative Appeals Unit within fifteen (15) days (plus three days for mailing) of the date that the Final Agency Decision is mailed to the parties. The motion must state specific grounds for reconsideration of the Final Agency Decision. 4. The Department Administrative Appeals Unit shall serve a copy of the motion for reconsideration to each party of record and appropriate division of the Department via first class mail or by electronic mail, if the parties agree to electronic service. 6 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood B. For the Colorado Child Care Assistance Program (CCCAP) appeals, when an appeal results in a Final Agency Decision that the county department or Department was not in accordance with administrative rules of the Department, or when the county department or Department so determines after a request for a hearing is made, the CCCAP adjustment or corrective payment is made retroactively to the date of the incorrect action. 6.300 COLORADO CHILD CARE ASSISTANCE PROGRAM (CCCAP) COUNTY DEPARTMENT DISPUTE RESOLUTION PROCESS AND APPEALS To resolve disputes between county departments or the service delivery agency and CCCAP applicants or recipients, county departments shall adopt procedures for the resolution of disputes consistent with this section. The procedures shall be designed to establish a simple non-adversarial format for the informal resolution of CCCAP disputes.

6.301 OPPORTUNITY FOR CONFERENCE A. Before the county department or local service delivery agency takes a negative action such as denies, terminates, recovers, or modifies a CCCAP benefit, it shall provide an opportunity for a county dispute resolution conference in writing and in accordance with the “Timely Written Noticing” requirement outlined in 8 CCR 1403-1 rule section 3.103(CCCCC). B. The county department or local service delivery agency must provide the applicant/recipient with notice of the applicant/recipient’s right to the county dispute resolution conference. The notice must provide that:

1. The applicant/recipient must request a county dispute resolution conference prior to the effective date of the suspension, termination, or modification of the CCCAP benefit as provided on the written notice;

2. Failure of the applicant/recipient to request a county dispute resolution conference prior to the effective date provided on the written notice, or failure to appear at the time of the scheduled conference without making a timely request for postponement, constitutes abandonment of the right to a conference, unless the applicant/recipient can show good cause for failure to appear.

3. The applicant/recipient may bypass the county dispute resolution process and appeal directly to the state Office of Administrative Courts, pursuant to section 24-4-105(2), C.R.S., and as described below in rule section 6.304.

C. If the applicant/recipient requests a county dispute resolution conference prior to the effective date of the suspension, termination, or modification of the CCCAP benefit as provided on the written notice, the county department or local service delivery agency must provide notice to the applicant/recipient of the scheduled date, time and location or log-in information for the conference. Notice should be in writing; however, verbal notice may also be given in addition to the written notice to facilitate the dispute resolution process. 6.302 CONDUCT OF COUNTY DISPUTE RESOLUTION CONFERENCE A. Upon request, the county department or local service delivery agency must provide or allow access to the contents of the case file and all documents and records used by the county department or local service delivery agency in making its decision with the exception of names of confidential informants; privileged communications between the county department and its attorney; and the nature and status of pending criminal prosecutions. The county department must provide these documents or records within thirty (30) days of the request. 7 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood B. The county dispute resolution conference must be held in the county department and would include the local service delivery agency where the proposed decision is pending, before a person who was not directly involved in the initial determination of the action in question. The county may conduct the county dispute resolution conference virtually if the technology is available to both the county and the applicant/recipient. The individual who initiated the action in dispute shall not conduct the county dispute resolution conference. C. The individual designated to conduct the conference must have knowledge, experience, and training, to determine if the proposed action is valid. D. Two (2) or more county departments may establish a joint dispute resolution process. If two (2) or more counties establish a joint process, the location of the conference need not be held in the county department taking the action, but the conference location must be easily accessible to the applicant/recipient.

E. The county dispute resolution level conference may be conducted by telephone, or virtually, if the applicant/recipient agrees to a telephonic or virtual conference. F. The individual who initiated the action in dispute, or another person familiar with the case, shall attend the county dispute resolution conference and present the factual basis for the disputed action.

G. The applicant/recipient may represent themselves or may be represented by legal counsel, a relative, friend, or other spokesman. Representation by a nonlawyer in this circumstance does not constitute the practice of law.

H. The county dispute resolution conference must be conducted on an informal basis. The county department must make every effort to ensure that the applicant/recipient understands the county department's specific reasons for the disputed action. If the applicant/recipient requests an interpreter, the county department shall provide an interpreter for the county dispute resolution conference.

I. The county department shall have all documents and records in the case file described in rule section 6.302(A) available at the conference.

J. The applicant/recipient must be allowed to present information or documentation to support their position.

K. To the extent possible, the county dispute resolution conference must be scheduled and conducted prior to the effective date of the suspension, termination, or modification of the CCCAP benefit as provided on the written notice. If the county department cannot conduct the county dispute resolution conference prior to suspension, termination, or modification of the CCCAP benefit, benefits must be continued until such conference can be held, unless the individual waives continued benefits.

L. The county department may consolidate disputes with any other public assistance program if the facts are similar and consolidation will facilitate resolution of all disputes. M. Failure to appear at the time of the scheduled county dispute resolution conference without making a timely request for postponement constitutes abandonment of the right to a county dispute resolution conference unless the applicant/recipient can show good cause for their failure to appear.

8 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 6.303 COUNTY DEPARTMENT DISPUTE RESOLUTION CONFERENCE DECISION A. If the dispute is not resolved through the county dispute resolution conference, the person conducting the county dispute resolution conference shall prepare a written statement indicating that the dispute was not resolved. The statement must be issued within ten (10) calendar days of the county dispute resolution conference and include an explanation of the applicant/recipient's right to request an appeal before an Administrative Law Judge; the time limit for requesting an appeal; and if appropriate, a statement that applicable benefits will continue pending a final state decision if appealed to the state within ten (10) calendar days from the date of the statement. 1. To appeal a written statement, the applicant/recipient must submit a written request that is mailed within ten (10) calendar days of the date the county dispute resolution conference decision was mailed to the applicant/recipient in order to receive continued benefits pending state appeal. Continued benefits will be recovered by the county department as a client error pursuant to rule section 3.145 located in 8 CCR 1403-1, if the Final Agency Decision confirms that the applicant/recipient was not eligible. B. If the parties reach an agreement at the county dispute resolution conference, the person who conducted the county dispute resolution conference shall reduce the agreement to writing. The parties or their representatives shall sign the agreement. The agreement will be binding upon the parties. The county department must immediately provide the applicant/recipient with a copy of the written decision. If the conference is held by telephone or through virtual means, the agreement need only be signed by the person who conducted the county dispute resolution conference. The county department must mail or deliver the agreement to the other party(s) within one (1) business day after the county dispute resolution conference. 6.304 COLORADO CHILD CARE ASSISTANCE PROGRAM (CCCAP) APPEAL A. The applicant/recipient is entitled to an appeal at the Office of Administrative Courts for the following circumstances:

1. The applicant/recipient’s CCCAP application or reapplication has been denied. 2. The applicant/recipient’s CCCAP application has not been acted upon within fifteen (15) calendar days.

3. The CCCAP benefit has been modified or discontinued, the requested reconsideration of a CCCAP benefit amount deemed incorrect has been refused or delayed through the withholding of authorization, the county department is demanding repayment for any part of an award from a recipient or former recipient which the recipient does not believe is justified, the applicant/recipient disagrees with the type or level of benefits or services provided, or the parent fee calculation.

B. The county department has the burden of proof, by a preponderance of the evidence, to establish the basis of the decision being appealed. Every party to the proceeding has the right to present their case or defense through testimony and evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. 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. C. The hearing is closed to the public; however, any person or persons whom the applicant/recipient wishes to appear on their behalf in accordance with rule section 6.302(G) may be present, and, if requested by the applicant/recipient and in the record, such hearing may be public. 9 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood D. If an appellant fails to appear at a duly scheduled hearing, having been given proper notice in accordance with 1 CCR 104-1, Rule 4, without having given timely advance notice to the Administrative Law Judge of 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 an Order to Show Cause shall be entered by the Administrative Law Judge and served upon the parties by the Office of Administrative Courts. The Order to Show Cause shall not be implemented pending review by the Department Administrative Appeals Unit and entry of a Final Agency Decision.

1. The applicant/recipient must be afforded a ten (10) day period from the date the Order to Show Cause was mailed or delivered, during which the applicant/recipient may explain in writing to the Administrative Law Judge the reason for failure to appear. a. If the Administrative Law Judge finds that there was good cause for the applicant/recipient not appearing, the Administrative Law Judge shall reschedule another hearing date.

b. If the applicant/recipient submits in writing seeking to show good cause and the Administrative Law Judge finds that the stated facts do not constitute good cause, or if the applicant/recipient does not submit a letter seeking to show good cause within the ten (10) day period, the Administrative Law Judge shall enter an Initial Decision dismissing the appeal.

2. The appellant may file exceptions to the Initial Decision pursuant to rule section 6.202(B)(1)(a).

3. After considering the record and any exceptions filed, the Department Administrative Appeals Unit shall issue a Final Agency Decision that confirms or reverses the dismissal, which shall be served upon the parties.

a. If the dismissal is confirmed, the county department shall immediately carry out the necessary actions to provide assistance or services in the correct amount, to terminate assistance or services, to recover assistance incorrectly paid, and/or other appropriate actions in accordance with the rules. An applicant/recipient has the right to appeal a Final Agency Decision confirming the dismissal through the judicial review process as outlined in section 24-4-106, C.R.S. b. If the dismissal is reversed, the case shall be remanded back to the Office of Administrative Courts for further proceedings, if necessary. E. The Administrative Law Judge shall not enter a default against an applicant/recipient for failure to file a written answer in response to the notice of violation and voluntary wavier of hearing but shall base the Initial Decision upon the evidence introduced at the hearing, assuming the applicant/recipient appears for the hearing.

6.305 COUNTY DEPARTMENT RESPONSIBILITIES FOR A CCCAP APPEAL A. When the applicant/recipient has had a county dispute resolution conference and wishes to appeal the county department's decision to the Office of Administrative Courts for a hearing, the county department must follow the below procedures:

1. Assist in providing materials supporting the applicant/recipient’s claim if the applicant/recipient so desires;

10 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 2. Provide the applicant/recipient with the opportunity to examine materials as described in rule section 6.202(A);

3. Forward a copy of the written notification given to the applicant/recipient of the proposed adverse action and a copy of the county dispute resolution conference decision to the Office of Administrative Courts.

B. If the applicant/recipient bypasses the county dispute resolution conference and appeals directly to the Office of Administrative Courts, the applicant/recipient or the county department must deliver a written request for a CCCAP appeal no later than ninety (90) calendar days from the date the county department mailed prior notice of the proposed action to the applicant/recipient via postal service, e-mail or other electronic systems, fax, or hand-delivery. After the Office of Administrative Courts receives the appeal request, it will forward a copy of the notice to the applicant/recipient setting a date for the hearing to the county department. Upon receipt by the county department, the county department shall prepare and mail a letter to the applicant/recipient with a copy to the Office of Administrative Courts, no later than five (5) business days prior to the hearing, which provides the following information: 1. The reasons for the county department decision and a specific explanation of each factor involved, such as the amount of excess property or income, assignment or transfer of property, residence factors, and service needs;

2. The specific state administrative rules and/or the official written county department policy(s) on which the decision is based, and numeric reference to each rule, including the appropriate Code of Colorado Regulations (CCR) citations; 3. Notice that the county department will assist the applicant/recipient in providing materials supporting the applicant/recipient’s claim, if desired; and 4. Notice that the applicant/recipient has the opportunity to examine regulations and materials described in rule section 6.302(A),to be used at the hearing. C. Any clear expression in writing by the applicant/recipient, or someone described in rule section 6.302(G) that the applicant/recipient legally authorized to act on their behalf, that they want an opportunity to have a specific action, as defined by rule section 6.304(A), reviewed by the Department is considered an appeal and a request for a hearing. If the request for an appeal and hearing is made orally, the county department shall immediately prepare a written request for the individual's signature or have the recipient prepare such request, specifying the action taken by the county department on which the request is based and the reason for appealing that action. D. To withdraw an appeal, the applicant/recipient must submit a statement in writing to the Office of Administrative Courts.

E. If the applicant/recipient is represented by legal counsel, a relative, friend, or other spokesperson, the county department must not discuss the merits of the appeal or the question of whether or not to proceed with the appeal outside the presence of, or without the permission of, such legal counsel, relative, friend, or other spokesperson.

F. If the county department learns that the applicant/recipient will be represented by legal counsel, the county department shall make every effort to ensure that it too is represented by an attorney at the hearing.

G. If the applicant/recipient has a language difficulty, the county department shall arrange to have present at the hearing a qualified interpreter who will be sworn to translate correctly. 11 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood H. The county department may review the case and consider any new factors which might change the status of the case at any time prior to the hearing, including reversing its decision or otherwise settling the issue. The county department must immediately report any change which eliminates the need for a hearing to the Office of Administrative Courts by telephone or in writing. I. The county department shall arrange for a hearing room appropriate to accommodate the number of persons, including witnesses, who are expected to be in attendance, taking into consideration such factors as privacy; whether the hearing is being held virtually absence of distracting noise; need for tables, chairs, electrical outlets, adequate lighting and ventilation, and conference telephone facilities.

6.306 STATE RESPONSIBILITIES FOR A CCCAP APPEAL A. The Department is responsible for notifying the Office of Administrative Courts (OAC) of all requests for appeals that the Department receives.

B. Upon receipt by the Office of Administrative Courts of an appeal request, the Office of Administrative Courts will assign the appeal a case number and cause the appeal to be set for hearing through a setting conference.

C. At the setting conference, the Office of Administrative Courts will set a hearing date at least thirty (30) days in advance. The Office of Administrative Courts will send a hearing notice by first class mail or electronic mail, depending on the preferences of the applicant/recipient, to the applicant/recipient and the county department notifying them of the date, time, and place of the hearing.

D. The Office Administrative Courts must inform the applicant/recipient appealing the county decision (appellant) that if the date, time, and/or place of the hearing is not satisfactory, they must notify the Office of Administrative Courts and, if good cause exists, the Office of Administrative Courts will consider changing the date, time, and/or place of the hearing. E. The Office of Administrative Courts will provide an information sheet to the appellant with the hearing notice to explain the hearing procedures to the appellant. The information sheet must inform the appellant that:

1. They have the right to seek legal representation.

2. Before and during the hearing, the appellant or the appellant’s representative has the right to examine all materials to be used at the hearing. Information which the appellant or the appellant’s representative does not have an opportunity to see before or after the hearing shall not be made a part of the hearing record or used in a decision on an appeal. No material made available for review by the Administrative Law Judge may be withheld from review by the appellant or the appellant’s representative. 3. Failure to appear at the hearing as scheduled, without having secured a proper extension in advance, or without having shown good cause for failure to appear, shall constitute abandonment of the appeal and cause the appeal to be dismissed. See rule section 6.304(D), above.

F. Initial Decisions:

1. The Office of Administrative Courts Administrative Law Judge must issue a written Initial Decision of law in every appeal.

12 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 2. The Office of Administrative Courts must include copies of all exhibits, pleadings, applications, evidence, exhibits, and other papers used to inform the Initial Decision, with the Initial Decision for the Final Agency Decision.

3. The Administrative Law Judge has twenty (20) days from the date the hearing record closed to issue an Initial Decision.

4. The Initial Decision shall not be implemented pending review by the Department Administrative Appeals Unit and entry of a Final Agency Decision. 6.307 GROUP HEARINGS AND EXCEPTIONS A. When more than one (1) individual requests for hearing are received and if the sole issue involved pertains to state or federal law or changes in state or federal law, a single group hearing may be conducted. Each applicant/recipient shall be permitted to present their own case or be represented by legal counsel of their choice, or a relative, friend, or other spokesperson. Each applicant/recipient is entitled to receive a copy of the written decision. B. A hearing shall not be granted when either state or federal law requires an automatic benefit adjustment for classes of applicants/recipients unless the sole reason for an individual appeal is incorrect benefit computation. Furthermore, a hearing shall not be granted when either state or federal law requires or results in a reduction or deletion of a benefit. C. Unless the applicant/recipient has properly designated an individual to represent them, a provider of assistance, or any other provider of goods and services to applicants/recipients, shall not be granted a hearing concerning an alleged adverse action to an applicant/recipient. 6.400 CHILD CARE LICENSING PROGRAM APPEALS 6.401 NEGATIVE LICENSING ACTION APPEALS A. In the case of a petition by the Department or an appeal by a licensee or an applicant for a license, for an issue related to license status, the decision of the Administrative Law Judge is an Initial Decision subject to Department review or modification. The Department will review the Initial Decision and issue a Final Agency Decision. The Final Agency Decision is subject to judicial review, pursuant to sections 24-4-106 and 26.5-1-107, C.R.S. B. The licensing appeal process may be initiated by the licensee/applicant, their legal representative, or by the Department. The licensee/applicant need not hire an attorney to appeal the licensing decision unless required by section 13-1-127, C.R.S. 6.402 APPLICATION DENIAL OR DENIAL OF A RENEWAL A. The Department can deny an application for a child care license or deny an application for renewal of a child care license for the reasons stated in section 26.5-5-317(2), C.R.S. B. When the Department denies a child care licensing application or decides not to renew an existing license, it must notify the applicant or licensee in writing of the decision. The decision letter must be mailed by certified mail to the applicant or licensee at the address listed on the application or renewal form.

C. An applicant who is denied a license or a licensee whose application for renewal is denied has the right to appeal the agency decision. To appeal the decision, the applicant or licensee must request a hearing in writing by sending a request to the Department within thirty (30) calendar days of receiving the decision letter.

13 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood D. The burden of proof is on the applicant or licensee to show why they are entitled to a license or renewed license.

E. After receiving a request for hearing, the Department shall initiate a case in the Office of Administrative Courts (OAC) and cause a Notice of Duty to Answer and Notice of Charges (Notice of Charges) to be filed with the Office of Administrative Courts. The Notice of Charges must assert the grounds for denying the applicant’s license application or failing to renew a licensee’s license. The Department must serve the Notice of Charges on the applicant/licensee (appellant) consistent with the Office of Administrative Court’s procedures, as incorporated by reference in rule section 6.201(A).

F. The appellant must respond to the Notice of Charges within thirty (30) days of service or mailing of the Notice of Charges. If the appellant fails to respond, the Office of Administrative Courts Administrative Law Judge may enter a Default Judgment affirming the Department’s decision regarding the application or renewal.

G. All hearings regarding the denial of a license or decision not to renew an existing license must be conducted in accordance with sections 24-4-104 and 24-4-105, C.R.S., and rule section 6.201(A). H. Each party in the action may file exceptions to the Initial Decision in accordance with section 24- 4-105(14)(a)(I), C.R.S., and rule section 6.202(B)(1)(a). I. The Department’s Administrative Appeals Unit must issue a Final Agency Decision in accordance with rule section 6.202(B).

J. The Final Agency Decision may be further appealed by filing a judicial review action pursuant to section 24-4-106, C.R.S.

6.403 APPEALS FROM SUMMARY SUSPENSION, PROBATIONARY LICENSE, OR LICENSE REVOCATION A. The Department can summarily suspend, modify to probationary, or revoke a child care license for the reasons stated in section 26.5-5-317(2), C.R.S. B. The Department must follow the requirements of section 24-4-104(4), C.R.S., in issuing orders of summary suspension for child care licenses. The Department must personally serve, in accordance with Colorado Rules of Civil Procedure Rule 4, the Order of Summary Suspension on the licensee.

1. Once the Order of Summary Suspension has been served, the Department will initiate a case at the Office of Administrative Courts for approving the Order of Summary Suspension and/or proceeding with an Order of Revocation, as described in rule section 6.403(E), below.

C. When the Department makes a decision to revoke or modify a child care license, it must give notice, in writing, of the objective facts or conduct that warrants such action (Data Views and Arguments letter). The Department must send the notice by certified mail or electronic mail to the licensee to the mailing address or email address provided to obtain licensure. 1. The licensee shall have the opportunity to respond to the Data Views and Arguments letter. The licensee’s response must be provided in writing, and is due on or before the date listed in the Data Views and Arguments letter, but no earlier than thirty (30) business days from the date provided on the Data Views and Arguments letter. 14 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood D. After the deadline provided on the Data Views and Arguments letter expires for the licensee to respond, the Department shall consider any responses provided, and make a decision regarding whether to proceed with modification or revocation of the child care license within thirty (30) days of receiving the licensee’s response, or expiration of the licensee’s deadline to submit a response to the Data Views and Arguments letter.

1. If the Department proceeds with modification or revocation, it shall send the notice of that decision to the licensee via certified mail or electronic mail, and initiate an appeal at the Office of Administrative Courts.

2. If the Department decides not to proceed with modification or revocation, it shall send notice of that decision to the licensee via certified mail or electronic mail. E. The Department will initiate a case with the Office of Administrative Courts by causing a Notice of Duty to Answer and Notice of Charges (Notice of Charges) to be filed. The Notice of Charges must assert the grounds for suspending, modifying, or revoking the license. The Department must serve the Notice of Charges on the licensee in accordance with the Office of Administrative Courts procedures, incorporated by reference in rule section 6.201(A). F. The licensee must respond to the Notice of Charges within thirty (30) days of service or mailing of the Notice of Charges. If the licensee fails to respond, the Office of Administrative Courts Administrative Law Judge may enter a Default Judgment affirming the Department’s decision regarding the application or renewal.

G. The burden of proof is on the Department to show, by a preponderance of the evidence, why the license should be suspended, modified, or revoked.

H. All hearings regarding suspension, modification, or revocation of a license must be conducted in accordance with sections 24-4-104 and 24-4-105, C.R.S., and rule section 6.201(A). I. Each party may file exceptions to the Initial Decision in accordance with section 24-4- 105(14)(a)(I), C.R.S., and rule section 6.202(B)(1)(a). J. The Department’s Administrative Appeals Unit must issue a Final Agency Decision in accordance with rule section 6.202(B).

K. The Final Agency Decision may be further appealed by filing a judicial review action pursuant to section 24-4-106, C.R.S.

6.500 LOCAL COORDINATING ORGANIZATIONS (LCO) APPEALS These rules are promulgated pursuant to section 26.5-2-105(5), C.R.S., to establish a process by which an applying entity that is not selected to act as a Local Coordinating Organization (LCO), or a Local Coordinating Organization for which the coordinating agreement is terminated, may appeal the decision of the Department.

A. LCOs are selected and reviewed by the Department according to sections 26.5-2-103(4) and 26.5-2-105, C.R.S.

B. When the Department denies an entity’s application to be an LCO or terminates an LCO’s coordinating agreement, it must provide the LCO with a written explanation that includes: 1. the reasons for the Department’s decision and a specific explanation thereof; 15 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 2. the specific rules, laws, and/or contractual provisions on which the decision is based, and numeric references to each legal authority; and 3. a notice of the right to appeal the Department’s decision to the Office of Administrative Courts (OAC), consistent with this rule section 6.500.

C. An entity that is not selected as an LCO, or an existing LCO that has had its coordinating agreement terminated is entitled to appeal that decision in an appeal with the OAC. D. The entity wishing to appeal the LCO denial or termination (appellant) must submit a written appeal request to the Department no later than thirty (30) calendar days after the date the appellant’s application for LCO was denied or the appellant’s coordinating agreement was terminated.

E. The Department will initiate the appeal by filing with the OAC: 1. The appellant’s timely appeal request; and 2. The Department’s Notice of Charges setting forth the factual basis and legal authority for the denial or termination.

F. The Department must serve a copy of the Notice of Charges on the appellant by regular first class mail, on the same day in which the Notice of Charges was filed with the OAC. G. Upon receipt by the OAC of an LCO appeal request, OAC will assign the appeal a case number, and cause the appeal to be set for hearing through a setting conference. H. The OAC and the parties to the appeal will set a hearing date at least thirty-five (35) calendar days from the date of the setting conference. The OAC will serve a notice of hearing to the appellant and the Department notifying them of the date, time, and place of the hearing at least thirty (30) days prior to the hearing.

I. The appellant shall file a response to the Department’s Notice of Charges within thirty (30) calendar days after service of the Notice of Charges, pursuant to section 24-4-105(2)(b), C.R.S. J. The parties have the right to present their case or defense through testimony and evidence; to submit rebuttal evidence; and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The hearing will be conducted pursuant to section 24-4-105, C.R.S., and the OAC’s procedural rules published at 1 CCR 104-1, and incorporated by reference in rule section 6.201(A).

K. If an appellant fails to appear at a duly scheduled hearing, having been given proper notice, without having given timely advance notice to the Administrative Law Judge of 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 an Order to Show Cause shall be entered by the Administrative Law Judge and served upon the parties by the OAC. The Order to Show Cause shall not be implemented pending review by the Department Administrative Appeals Unit and entry of a Final Agency Decision.

1. The applicant/recipient must be afforded a ten (10) day period from the date the Order to Show Cause was mailed or delivered, during which the applicant/recipient may explain in a writing to the Administrative Law Judge the reason for failure to appear. If the Administrative Law Judge finds that there was good cause for the applicant/recipient not appearing, the Administrative Law Judge shall reschedule another hearing date. 16 CODE OF COLORADO REGULATIONS 8 CCR 1406-1 Administrative Appeals for the Colorado Department of Early Childhood 2. If the applicant/recipient submits a writing seeking to show good cause and the Administrative Law Judge finds that the stated facts do not constitute good cause, or if the applicant/recipient does not submit a letter seeking to show good cause within the ten (10) day period, the Administrative Law Judge shall enter an Initial Decision Dismissing Appeal.

L. After considering all evidence presented at the hearing, the OAC must issue an Initial Decision as outlined in rule section 6.202(A), within sixty (60) days. The Department’s Administrative Appeals Unit will review the Initial Decision pursuant to rule section 6.202(B). The Department’s Final Agency Decision is subject to judicial review pursuant to section 24-4-106, C.R.S. Historically located in 9 CCR 2503-8.

_________________________________________________________________________ Editor’s Notes History New rule emer. rule eff. 12/30/2023.

Entire rule eff. 03/16/2024.

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