DEPARTMENT OF HUMAN SERVICES Income Maintenance (Volume 3)

ADMINISTRATIVE PROCEDURES 9 CCR 2503-8 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ 3.800 PAYMENT POLICIES 3.800.1 RIGHT TO PAYMENT .11 The right of an eligible individual to receive the current month's payment vests at 12:01 a.m. on the first day of the month.

.12 When the county department determines that a recipient was ineligible for all or a part of the money payment, the county department shall, subject to prior notice and recovery rules, establish a recovery.

.13 When a recipient of any category of assistance dies before 12:01 a.m. on the first day of a month, no entitlement to a money payment for the following month exists. .14 When a recipient of any category of assistance dies after 12:01 a.m. on the first day of a month, any payment to which the person was entitled shall be kept available, for release to the recipient's personal representative, for a maximum of three months. The following rules apply: A. the personal representative may present a court order to the county department, in which case the payment is made available to the person named in the order; B. the personal representative may present an affidavit to the county department to collect the payment, in which case the county department shall consult its legal advisor to insure the affidavit is proper and to protect the department in releasing the payment to the affiant; C. a payment payable to a deceased AFDC payee may be released to a personal representative when such person presents a court order or a proper affidavit, or it may be released to the person who has assumed financial responsibility for the children when such person presents a proper affidavit;

D. for OAP Class C recipients, the responsibility for ensuring the above policies and procedures are followed lies with the institution.

3.800.2 AMOUNT OF PAYMENT (NOT APPLICABLE TO AFDC)

.21 The initial payment to eligible applicants shall include assistance beginning with the date of application. Should the applicant be ineligible on the date of application but become eligible prior to the time a determination of eligibility is made, the initial payment shall include assistance beginning with the date the applicant became eligible. Thereafter, eligible recipients shall receive monthly assistance payments.

.22 To calculate partial month payments, the following table shall be used: Days Standard Days Standard Month Day Standard Month s Month 1 .03288 11 .36164 21 .69041 2 .06575 12 .39452 22 .72329 3 .09883 13 .42739 23 .75817 4 .13141 14 .46027 24 .78904 5 .16439 15 .49315 25 .82192 6 .19726 16 .52603 26 .85480 7 .23014 17 .55890 27 .88768 8 .26302 18 .59178 28 .92054 9 .29590 19 .62466 29 .95342 10 .32876 20 .65754 30 .98630 The following procedure shall be used to figure pro rata payments: A. compute the net monthly payment amount by deducting the total income from the total requirements;

B. determine the number of days for which payment is to be made; C. multiply the net monthly payment amount by the decimal figure for the number of days; i.e., net monthly payment amount of $235 x .32876 for 10 days = $77.26. .23 The net payment amount is rounded to the nearest dollar. A. computed payment amount between $77.01 and $77.49 is rounded down to $77.00; B. computed payment amount between $77.50 and $77.99 is rounded up to $78.00; C. When the computed payment amount is between .01 and .49, the exact amount is paid; D. an OAP recipient may notify the county department in writing that he wishes to receive the exact computed payment amount rather than a rounded amount. The request is honored and is in effect as long as the person receives assistance. 3.800.3 UNRESTRICTED PAYMENT .31 Categorical assistance are money payments made to the eligible individual or made in his behalf to his legal guardian.

.32 The recipient of assistance has the same rights and responsibilities in the use of his money and the discharge of his obligations as any other person. For this reason: A. the requirement items used to set the standards of assistance lose their identify when the net payment amount is established;

B. the county department shall not impose any restriction, either direct or implied, on a recipient's use of his money payment;

C. the county department shall not require the recipient to account for the use of the money payment.

.33 Payments issued a categorical assistance recipient are not transferable or assignable, nor are the funds paid or payable subject to execution, levy, attachment, garnishment, or other similar legal process.

The county department shall not give assistance to creditors in the collection of the recipient's debts. .34 If a recipient requests a local dispute resolution conference or state level fair hearing within the prior notice period, financial assistance, or the basic cash assistance payment under the Colorado Works Program, shall continue during the dispute resolution process or state level appeal period until the final agency decision is entered unless the recipient voluntarily agrees to the reduction/ discontinuation of benefits or abandons the appeal.

3.800.4 HOLDING AND DISPOSING OF PAYMENTS .41 A payment shall not be held beyond the normal authorization date. The following are the only exceptions:

A. The 10-day due process period has expired;

B. A recipient has made a voluntary written request;

C. A final agency decision has been made authorizing the action; D. In cases where a corrected payment is to be issued, the corrected payment shall be issued by the effective date of the original warrant and the original payment shall be cancelled. E. When it is verified that the recipient no longer resides at the last known address and attempts to locate the person through the Post Office, relatives, friends, etc., have been unsuccessful, the current payment and two additional payments may be issued and held. If the recipient has not contacted the department and the address is still unknown at the end of the third month, the payments shall be canceled and the case discontinued; F. When a recipient dies after 12:01 a.m. on the first day of the month, the payment shall be held for three months for possible release to the recipient's personal representative. If not released, it shall be canceled subject to reissue if claimed at a later date. G. When the county department obtains facts which indicate an overpayment because of probable fraud or an intentional program violation and such facts have been verified to the extent possible, the payment may be held after a five-day due process period has expired.

3.800.5 CORRECTION OF UNDERPAYMENTS 3.800.51 Underpayments [Rev. eff. 9/15/12] A. For participants of the State AND, OAP, and AB Programs, the county department shall take prompt action to correct underpayments to current recipients and those who would be current recipients if the error causing the underpayment had not occurred. Underpayment means a financial assistance payment(s) received by or for an assistance unit which is less than the amount for which the assistance unit was eligible, or failure to issue a financial assistance payment to an eligible assistance unit if such payment should have been issued. When the possibility of an underpayment is discovered or brought to the attention of the county department, the income maintenance staff must: 1. Record the date of the discovery;

2. Investigate and verify the facts;

3. Determine whether an underpayment has occurred.

B. When it is determined that an underpayment has occurred, the county department shall take action to correct the payment. The two principal means of correction are: 1. Issue an additional payment so that the payment and the authorization are in agreement;

2. Issue a retroactive payment when the authorization is incorrect. 3.800.52 For State AND, OAP, and AB Programs Only [Rev. eff. 9/15/12] When the possibility of an underpayment is brought to the attention of the county department and it is determined that an underpayment has not occurred, the county department Income Maintenance staff shall:

A. Record the facts and basis for the conclusion in the case record; B. Notify the assistance unit in writing of the determination including the facts and basis for the conclusion;

C. Send a copy of the notification letter to the appropriate program area of the State Department. When it is determined that the assistance unit is not currently eligible for assistance or would not be currently eligible for assistance if the error causing the underpayment had not occurred, the county must notify the assistance unit in writing that the underpayment cannot be corrected and send a copy of notification letter to the appropriate program area of the State Department. .63 If the payee alleges the warrant has been forged, the county department shall: A. Request the original warrant from the treasurer along with such other documentation as is required to conduct a thorough investigation.

B. Determine if the warrant appears to be forged in conjunction with a local law enforcement agency by comparing the signature on the warrant with available samples of the payee's signature. If the warrant does not appear to be forged, referral shall be considered in accordance with the fraudulent acts section as described in the chapter on Administrative Procedures.

C. Obtain a sworn, notarized statement from the payee that the warrant is forged. D. Have the payee execute an assignment to the county department of the right to sue based on a forged endorsement.

Upon completion of the above, a duplicate warrant shall be issued. .64 The county department shall review the information collected and determine possible courses of action to recover lost funds; i.e., collect from business who cashed the forged warrant, present case to the district attorney for further investigation and/or prosecution. 3.810 RECOVERY OF OVERPAYMENT [Rev. eff. 5/1/11] NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. 3.810.1 DEFINITIONS 3.810.11 A "recovery" is the receipt of repayment for excess public assistance paid for which a recipient was not entitled.

3.810.12 To "legally establish" the amount of overpayment means a generally accepted legal method has been used to create an obligation to pay. This includes but is not limited to: A. An executed promissory note;

B. A court judgment;

C. A final agency action.

D. A signed public assistance repayment agreement.

3.810.13 Repayment [Rev. eff. 9/15/12] Adult Programs Only When establishing a claim for repayment from a recipient, "recipient" shall mean an individual whose needs are included in an assistance payment and an individual who is legally liable for the support of and/or who acts as a payee for individuals included in an assistance payment. 3.810.14 For individuals no longer receiving public assistance, a county department may choose to write off an unpaid overpayment of less than thirty-five dollars ($35). 3.810.15 The county may write-off an unpaid overpayment of $35 or more for an individual who is no longer receiving public assistance, and it has been six (6) or more years since the overpayment was established, and the county department has determined that it is no longer cost effective to pursue collection. The recovery policies for the Colorado Works/TANF program shall be included in the Colorado Works county plan.

3.810.16 Counties shall receive fiscal incentives to pursue fraud recoveries in all public assistance programs. The procedures for claiming these incentives are contained in the Finance staff manual (11 CCR 2508-1). For the purpose of these fiscal incentives, "fraud recovery" means a recovery which involves one or more of the following conditions: A. The district attorney prosecutes;

B. The district attorney establishes deferred prosecution; C. A nolo contendere plea is entered;

D. A public assistance recovery is established using the same basis as was used to establish a food stamp or AFDC recovery through an administrative hearing or waiver of the administrative hearing.

3.810.2 WHEN OVERPAYMENT IS NOT RECOVERED 3.810.21 In any case in which more than the correct amount of payment has been made, there shall be no recovery from any person:

A. Who is without fault in the creation of the overpayment, and B. Who has reported any increase in income or change in resources or other circumstances affecting the recipient's eligibility within the timely reporting requirements for the program, and C. If such recovery would deprive the person of income required for ordinary and necessary living expenses or would be against equity and good conscience. 3.810.22 When the overpayment is not to be recovered, such fact, together with the reason, is to be entered in the case record.

3.810.3 WHEN OVERPAYMENT IS RECOVERED 3.810.31 When the county department has determined that a recipient has received public assistance for which he was not entitled due to an increase in income, a change in resources, or any other change in circumstances that would affect the recipient's eligibility or payment, the department: A. Determines if the overpayment is to be recovered;

B. Determined whether there was willful withholding of information and considers or rules out possible fraud;

C. Establishes the amount of overpayment;

D. Notifies the recipient of the amount due and the reason for the recovery using the prior notice rules;

E. Enters the amount of the overpayment and other specific factors of the situation in the case record.

3.810.32 To Establish the Amount of Overpayment When Ineligibility is Due to Excess Resources [Rev. eff. 5/1/11] NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. A. Determine the amount, on a monthly basis, that the countable resources exceeded the allowable limit;

B. Determine the amount, on a monthly basis, of the assistance payments received by the recipient;

C. Compute the total amount due by using the lesser of the excess resources or the assistance payment made for each month of ineligibility;

D. If, in addition to excess resources, the recipient had income not considered in computing the money payment, two claims are established with the excess resource claim taking precedence.

3.810.4 RECOVERIES CONCERNING MISUSE OF TRUST PROPERTY OR RECIPIENT'S POWER OF ATTORNEY [Rev. eff. 5/1/11] NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. 3.810.41 The county department shall, in instances where a trustee has used a recipient's trust property in a manner contrary to the terms of the trust, as defined in the chapter on "Resources and Income - Property Ownership":

A. Determine whether an overpayment has occurred as a result; B. Consult with the county attorney or other legal resource to assure proper procedure; C. Advise the trustee of the overpayment circumstances; and D. If the trustee disagrees with such circumstances and overpayment, pursue the recovery establishment and collection through appropriate legal means; or E. Take appropriate steps to secure repayment with the cooperation of the trustee; or F. Take such other legal action against the trustee as deemed appropriate to assure protection of the recipient's rights in the trust.

3.810.42 The county department shall, in instances where the individual holding the recipient's power of attorney has used the power for purposes other than for the benefit of the recipient; A. Determine whether an overpayment has occurred;

B. Consult with the county attorney or other legal source to assure proper procedure; C. Advise the holder of the power of attorney of the overpayment circumstances; and D. If the holder of the power of attorney disagrees with the overpayment circumstances, pursue the recovery establishment and collection through appropriate legal means; or E. Take appropriate steps to secure repayment with the cooperation of the holder of the power of attorney; or F. Take such other legal action against the holder of the power of attorney as deemed necessary to assure protection of the recipient's rights and benefits. 3.810.5 DOCUMENTATION OF RECOVERY AMOUNT CONCERNING ADULT CATEGORICAL CASES (OAP, AB, AND)

3.810.51 The county department shall act promptly, within 30 working days, to verify the facts concerning a recovery, and the amount of assistance overpaid in cases of ineligibility. The circumstances and facts shall be entered in the case record.

3.810.52 When a recovery is determined to be necessary, the county department shall provide prior and adequate notice concerning the facts and circumstances. The county department shall complete and attach Form 5223, "Recovery Statement" as instructed in the section "Statement of Recoveries Due" in the Finance Staff Manual (11 CCR 2508-1) chapter on "Accounts Receivable and Refunds".

3.810.53 If, after the prior notice period, and county and/or state appeal hearing as indicated (and such appeal decision upholds the recovery action), the circumstances requiring recovery action continue to exist, the county department shall finalize the recovery action in accordance with the Finance Staff Manual (11 CCR 2508-1) chapter on "Accounts Receivable and Refunds". 3.810.6 (NONE) [Rev. eff. 9/15/12] 3.810.7 METHODS OF RECOVERY - NOT APPLICABLE TO AFDC [Rev. eff. 5/1/11] NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. 3.810.71 "Refund": A refund is the immediate repayment by a recipient of public assistance to which he/she was not entitled.

3.810.72 "Future Collection": A legally established claim for repayment at a later time when the recipient is self-sufficient and able to repay. Repayment from a former recipient is not sought when such repayment will cause financial hardship for the individual or his family. Repayment plans shall not exceed 25% of available monthly income.

3.810.73 "Deduction from Assistance Payment": When overpayment is caused by the recipient's willful withholding of information concerning income, resources, or other changes in circumstances, such prior overpayment shall be deducted from subsequent assistance payments. Willful withholding of information means (1) willful misstatement, including understatement, overstatement, or omission, whether oral or written, made by a recipient in response to oral or written questions from the department; (2) willful failure by a recipient to report changes in income, resources, or other circumstances which may affect the amount of payment; (3) willful failure by the recipient to report receipt of a payment which the recipient knew represented an overpayment or to notify the county department of receipt of a check which exceeded the amount to which he/she was entitled.

When the county department determines that a recipient has willfully withheld information, referral is made to the District Attorney when sufficient evidence of fraud exists. Whether or not referral is made, the county department shall establish a recovery by deduction from subsequent assistance payments. The following rules apply:

A. The recipient is notified of the action to be taken, including the fact of willful withholding of information, using the prior notice rules;

B. Generally, the deduction will be for the same length of time as were the overpayments; C. If hardship would be imposed on the recipient by a deduction for the same length of time as were the overpayments, the rate of recovery shall be at least 5% of the net assistance payment. If this rate would cause irreparable harm to the recipient, the recovery rate shall be established at 1% of the net monthly assistance payment; D. The recipient may choose to repay the county department the amount of the overpayment. In such an instance, the fraud charge should be discussed with the District Attorney. 3.810.74 Voluntary Deduction from Assistance Payment [Rev. eff. 5/1/11] When overpayment is not due to the recipient's willful withholding of information concerning income, resources, or other change in circumstances, such prior overpayment may be voluntarily deducted from subsequent assistance payments if:

A. The recipient requests a voluntary deduction, in writing, and B. The recipient is notified in writing that he/she has the right to stop the voluntary deduction at any time by written request.

NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. 3.810.75 "Claim against Estate": A claim if filed against the estate of a recipient for repayment for excess public assistance paid for which the recipient was ineligible. This includes cases where the value of the estate is in excess of the maximum allowable resources and where overpayments were made and not recovered. The department's legal advisor is consulted in determining the amount of assistance payments for which claim is to be filed.

3.810.76 Offset Against Taxpayer's State Income Tax Refund [Rev. eff. 7/1/12] A. In accordance with Sections 26-2-133 and 39-21-108, C.R.S., the state and county departments may recover overpayments of public or medical assistance benefits through the offset (intercept) of a taxpayer's state income tax refund. Rent rebates are subject to the offset procedure. This method may be used to recover overpayments which have been:

1. Determined by final agency action, or 2. Ordered by a court as restitution, or 3. Reduced to judgment.

Prior to certifying the taxpayer's name and other information to the Department of Revenue, the State Department of Human Services shall notify the taxpayer, in writing at his/her last-known address, that the state intends to use the tax refund offset to recover the overpayment. In addition to the requirements of 26-2-133(2), C.R.S., the pre-offset notice shall include the name of the county department claiming the overpayment, the program which made the overpayment, and the current balance owed. B. Effective August 1, 1991, the taxpayer is entitled to object to the offset by filing a request for a county dispute resolution conference or state hearing within 30 calendar days from the date that the state department mails its pre-offset notice to the taxpayer. In all other respects, the procedures applicable to such hearings shall be those which are stated elsewhere in this staff manual. At the hearing on the offset, the county department or ALJ shall not consider whether an overpayment has occurred, but may consider the following issues if raised by the taxpayer in his/her request for a hearing: whether 1. The taxpayer was properly notified of the overpayment, 2. The taxpayer is the person who owes the overpayment, 3. The amount of the overpayment has been paid or is incorrect, 4. The debt created by the overpayment has been discharged through bankruptcy, or 5. Other special circumstances exist, including but not limited to the circumstances described in section 3.810.21, i.e., facts which show that the taxpayer was without fault in creating the overpayment and will incur financial hardship if the income tax refund is offset.

3.820 FRAUDULENT ACT 3.820.1 DEFINITION - FRAUD .11 “Fraud” means an individual secured or attempted to secure or aided or abetted another person in securing public assistance to which the individual was not entitled by means of willful misrepresentation or intentional concealment of an essential fact. .12 Fraud is subject to criminal action and must be proven beyond a reasonable doubt. The three basic elements which have to be proven are A. the misrepresentation or concealment must have been deliberate and done intentionally. Fraud does not exist is the misrepresentation or concealment is the result of an unintentional act, a misunderstanding, or mental incompetency; B. the fraudulent act must have been for the express purpose of receiving or attempting to receive or obtain assistance to which the individual was not entitled; C. it must be shown that, if the county department had been aware of the facts, assistance should not have been granted or should have been granted in a lesser amount. 3.820.2 ESTABLISHING FRAUD [Rev. eff. 5/1/11] NOTE: Resources are not applicable to Colorado Works on or after January 7, 2011. .21 The misrepresentation or concealment must concern a fact that would affect eligibility or payment. This includes household composition, resources, income, and any other eligibility factor. .22 The misrepresentation may be oral or written. It can be in the form of an application for assistance, a written communication to the department, a redetermination form, a conversation with a technician, a telephone conversation, or failure to notify the department of a change in circumstances that would affect eligibility or payment. .23 Criminal intent must be proved beyond a reasonable doubt; therefore, the misrepresentation or concealment must be verified by written documentation and must relate to facts that existed at the time of the misrepresentation or concealment.

.24 Colorado Statutes provide for fraud charges to be filed against a person who aided another person in securing public assistance for which he was ineligible by misrepresenting or concealing essential facts.

.25 In collecting evidence of fraud, the county department shall not violate the legal rights of the individual. Examples of such violation would be invasion of the privacy of the home, unreasonable search and seizure, denial of due process of law, denial of the right to legal counsel, etc. When the department questions whether an action it contemplates might violate the legal rights of the individual, it shall seek the advice of its legal advisor. .26 Determination of whether fraud exists and referral to the District Attorney are within the administration of public assistance programs involved and are not considered a violation of safeguards and restrictions provided by confidentiality rules and regulations. 3.820.3 REFERRAL TO DISTRICT ATTORNEY .31 When the county department determines that it has paid or is about to pay a recipient an assistance payment as a result of a fraudulent act, the facts used in the determination shall be reviewed with the department's legal counsel and/or a representative from the District Attorney's office. If suspected fraud is substantiated by the available evidence, the case shall be referred to the District Attorney. All referrals to the District Attorney shall be made in writing and shall include the amount of assistance fraudulently received by the recipient. .32 When the District Attorney prosecutes, the amount of overpayment due will be taken into consideration and probably included in the court decision and order. If a deduction is being made from the recipient's assistance payment it may need to be adjusted to agree with the court order. If the individual is no longer a recipient, another method of recovery shall be used. .33 Interest shall be charged from the month in which the overpayment was received until the date it is recovered.

Interest shall be calculated at the legal rate.

.34 When the District Attorney decides not to prosecute, the amount of overpayment due, as established by the department, will continue to be recovered by deduction from subsequent assistance payments or other method of recovery if the individual is no longer a recipient. 3.820.4 REPORTING REQUIREMENTS .41 The county department shall forward the following reports to the district attorney/law enforcement officials each month:

A. a listing of each case denial or payment reduction related to a fraud investigation; B. IM-48.3 reports for each case investigated during the month; C. the number of cases having a deduction from payment due to fraud and the total amount deducted. Information is obtained from the payrolls;

D. the number of cases and amounts of fraud recoveries as reported on the monthly report of cash refunds and as reported on the distribution of child support payments by case. 3.830 APPLICANT/RECIPIENT'S RIGHT TO NOTICE OF ACTION Each applicant for or recipient of public and financial assistance, or a basic cash grant or other services provided under Colorado Works Program, is entitled to receive prior written notice of any agency action affecting his/her eligibility for or receipt of benefits or service. 3.830.1 NOTICE OF FAVORABLE ACTION The applicant or recipient shall be notified in writing of county department approval of: A. an application for financial assistance or cash assistance or services through the Colorado Works Program;

B. an application for medical assistance;

C. a request for public assistance or social services; and, D. an increase in the amount of assistance.

To the extent practicable, notice shall be in his/her primary language and shall be mailed or delivered promptly after the determination is made, and within the time period required by the specific program's rules. If the client is illiterate, the action shall be explained verbally. If the applicant or recipient is dissatisfied with the effective date of eligibility, or the amount or type of assistance or services authorized, he/she has the right to a county dispute resolution conference and/or state level fair hearing. 3.830.2 NOTICE OF ADVERSE ACTION An applicant or recipient shall be given adequate and timely notice of any action by the county department, or any person or agency acting on its behalf, which adversely affects the person's eligibility for, or right to public or medical assistance benefits, or basic cash assistance or services provided or authorized under the Colorado Works Program.

3.830.21 ADEQUATE NOTICE Failure to give prior adequate notice of an adverse action shall be grounds for setting aside the action on appeal. to be "adequate", the notice must meet the following standards: A. The notice must be in writing; and, B. It must describe clearly in terms that are understandable to the applicant or recipient the action to be taken and the reason(s) for the action; and, C. It must refer specifically by number to the section(s) of the State Department's rules and/or in the Colorado Works Program, the county's official written policy(s) that require or permit the action being taken, or cite the specific changes in federal or state law requiring the action; and, D. It must state the effective date of the proposed action; and, E. It must explain the individual's right to request a local level dispute resolution conference and state level fair hearing, the time period for requesting a conference or hearing, andthe steps which must be taken to obtain a conference orhearing; and, F. It must explain the recipient's right to continued benefits and the obligation to repay if it is determined that the recipient was not entitled to receive them; and, G. It must inform the individual of his/her right to be represented or assisted by legal counsel, a relative, a friend or a spokesperson of his/her choosing. H. To the extent practicable, notice shall be in his/her primary language. If s/he is illiterate, the action shall also be explained verbally.

3.830.22 Timely Written Notice [Rev. eff. 9/15/12] Any adverse action shall be preceded by a prior notice period of at least ten (10) calendar days. "Timely" notice means that written notice is mailed to the applicant or recipient at least ten calendar days before the effective date stated in the notice. The prior notice period begins the day following the date of certification of mailing of the Notice form. The 10 day prior notice period constitutes the period during which assistance is continued and no adverse action is to be taken during this time.

3.830.23 Exceptions to the Ten (10) Day Prior Notice Requirement [Rev. eff. 9/15/12] Timely prior notice, i.e., at least ten day prior notice, is not required: A. When facts indicate an overpayment because of probable fraud or an intentional program violation and such facts have been verified to the extent possible, prior notice is considered "timely" when mailed at least five (5) calendar days before the proposed effective date;

B. When the proposed adverse action is based on a clear, written statement signed by the individual which states that s/he no longer wishes to receive assistance or services. C. When the county department/agency has confirmed the death of a recipient or of the payee when there is no relative available or willing to act as the new payee. 3.830.24 Applicant/Recipient Rights Regarding Proposed Actions [Rev. eff. 9/15/12] An applicant or recipient who disagrees with a proposed action has the right to: A. A local level dispute resolution conference which must be requested prior to the effective date of the proposed action;

B. If the individual does not wish to utilize the local/county conference to resolve the dispute, a state level fair hearing before an Administrative Law Judge, if the issue is appealable, and if the written request is mailed or delivered to the Office of Administrative Courts no later than ninety (90) calendar days from the date the notice of action is mailed to the applicant/recipient.

C. If the individual is dissatisfied with the outcome of the local dispute resolution conference, a state level fair hearing before an administrative law judge if the written request for hearing is mailed or delivered to the Division of administrative hearing no later than ninety calendar days after the date notice of proposed action was mailed by the county department/agency;

D. Judicial review of the final agency decision in the appropriate state district court, after exhausting the administrative appeal rights granted under these rules; and, E. If the appellant is receiving financial assistance, medical assistance, social services, or basic cash assistance under the Colorado Works Program at the time a conference or fair hearing is requested, all benefits shall be continued pending the outcome of the state level fair hearing and final agency decision, only if the request for local conference and/or state level fair hearing is made prior to the effective date of the proposed action being appealed or the ten (10) day period for appealing a county dispute resolution decision to the state department. Continued benefits shall be authorized unless the appellant states in writing that continued benefits are being waived.

3.830.3 CATEGORICAL PAYMENT ADJUSTMENTS 3.830.31 When changes in either state or federal law require payment adjustments for all persons receiving a particular category of assistance, timely notice shall be given which shall be adequate if it includes a statement of the intended action, the reasons for such action, the specific change in law requiring such action, and the circumstances under which a county dispute resolution conference and/or state level hearing may be obtained and financial assistance continued. A county conference or state appeal need not be granted unless the reason for an individual appeal is incorrect grant computation.

3.840 COUNTY DISPUTE RESOLUTION PROCESS In order to resolve disputes between county departments of social services or the service delivery agency and applicants/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 disputes.

3.840.1 OPPORTUNITY FOR CONFERENCE .11 The county department or local service delivery agency, prior to taking action to deny, terminate, recover, initiate vendor payments or modify financial assistance, public assistance, or basic cash assistance or services provided under the Colorado Works Program to an applicant or recipient, shall, at a minimum, provide the individual opportunity for a county dispute resolution conference. 3.840.12 [Rev. eff. 9/15/12] The right of an individual to a local conference is primarily to assure that the proposed action is valid, to protect the person against an erroneous action concerning benefits, and to assure reasonable promptness of county action. The individual may choose, however, to bypass the county dispute resolution process and appeal directly to the state Office of Administrative Courts, pursuant to the section on appeal and state hearing.

.13 The applicant/recipient is entitled to:

A. be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or s/he may represent her/himself;

B. 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, examine the contents of the case file and all documents and records used by the county department or agency in making its decision at a reasonable time before the conference as well as during the conference;

C. present new information or documentation to support reversal or modification of the proposed adverse action;

.14 Failure of the applicant/recipient to request a local conference within the prior notice period, or failure to appear at the time of the scheduled conference without making a timely request for postponement, shall constitute abandonment of the right to a conference, unless the applicant/recipient can show good cause for his/her failure to appear. .15 "Good Cause" includes, but is not limited to: death or incapacity of an applicant/recipient, or a member of his/her immediate family, or the representative; any other health or medical condition of an emergency nature; or, other circumstances beyond the control of the applicant/recipient, and which would prevent a reasonable person from making a timely request for a conference or postponement of a scheduled conference.

3.840.2 CONDUCT OF COUNTY DISPUTE RESOLUTION CONFERENCE .21 The local dispute resolution conference shall be held in the county department or 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 individual who initiated the action in dispute shall not conduct the local level dispute resolution conference.

.22 The person designated to conduct the conference shall be in a position which, based on knowledge, experience, and training, would enable him/her to determine if the proposed action is valid. .23 Two or more county departments/service delivery agencies may establish a joint dispute resolution process. If two or more counties/service delivery agencies establish a joint process, the location of the conference need not be held in the county or agency taking the action, but the conference location shall be convenient to the applicant/recipient. .24 The local level conference may be conducted either in person or by telephone. A telephonic conference must be agreed to by the applicant/recipient. .25 The county/agency caseworker or other person who initiated the action in dispute, or another person familiar with the case, shall attend the local level conference and present the factual basis for the disputed action.

.26 The local level dispute resolution conference shall be conducted on an informal basis. Every effort is to be made to assure that the applicant/recipient understands the county department/agency's specific reasons for the proposed action, and the applicable state department's rules, or county policy. In the event the applicant/recipient does not speak English, an interpreter shall be provided by the county department/agency.

.27 The county/agency shall have available at the conference all pertinent documents and records in the case file relevant to the specific action in dispute.

3.840.28 To the extent possible, the local dispute resolution conference shall be scheduled and conducted within the prior notice period. If the county department cannot conduct the conference within this period, for whatever reason, the adverse action shall be delayed and benefits continued until a conference can be held, unless continued benefits are waived by the individual. The county department/local service agency shall provide reasonable notice to the individual of the scheduled time and location for the conference, or the time of the scheduled telephone conference. Notice should be in writing, however, verbal notice may be given to facilitate the dispute resolution process.

3.840.29 The county department may consolidate disputes regarding other assistance payments programs, the Colorado Works Program, the food stamp program, Medicaid eligibility, or any other public assistance program if the facts are similar and consolidation will facilitate resolution of all disputes.

3.840.3 NOTICE OF DISPUTE RESOLUTION CONFERENCE DECISION At the conclusion of the conference, the person presiding shall have the agreement entered into by the parties reduced to writing. Such agreement shall be signed by the parties and/or their representatives and shall be binding upon the parties. A copy of the written decision shall immediately be provided to the applicant/recipient and/or his/her representative. If the conference is held by telephone, the agreement need only be signed by the person presiding. A copy of the agreement will be promptly mailed or delivered to the other party(s). In the event the dispute is not resolved, the person presiding shall prepare a written statement indicating that the dispute was not resolved. 3.840.31 The decision shall include a statement explaining the applicant or recipient's right to request a state level fair hearing before an Administrative Law Judge, the time limit for requesting a state level hearing, and if appropriate, a statement that financial assistance will continue pending a final state decision if appealed to the state within 10 calendar days from the date of the conference decision.

3.850 APPEAL AND STATE LEVEL FAIR HEARING 3.850.1 OPPORTUNITY FOR STATE LEVEL FAIR HEARING 3.850.11 [Rev. eff. 9/15/12] These rules apply to all state-level appeals of county department actions concerning assistance payments, social services, medical assistance eligibility, child welfare services, child care, and actions taken pursuant to state rules or official county policies governing the Colorado Works Program. An affected individual who is dissatisfied with a county department action or the result of a county dispute resolution conference or failure to act concerning benefits may appeal to the Office of Administrative Courts for a fair hearing before an independent Administrative Law Judge. This will be a full evidentiary hearing of all relevant and pertinent facts to review the decision of the county department. The time limitations for submitting a request for an appeal are: A. When the individual elects to avail himself of a county dispute resolution conference, but is dissatisfied with that decision, the request must be submitted in writing and mailed or delivered within ten (10) calendar days of the date the county dispute resolution conference decision was mailed or delivered to the applicant or recipient in order to receive continued benefits pending state appeal; otherwise, the ninety (90) day period specified in B, below, applies;

B. When the individual elects not to avail himself of a county dispute resolution conference but wishes to appeal directly to the state, a written request for an appeal must be mailed or delivered not later than 90 calendar days from the date prior notice of the proposed action was mailed to the person;

C. A request for an appeal must be mailed or delivered to the Office of Administrative Courts. 3.850.12 Requests for state hearings may result from such reasons as: A. The opportunity to make application or reapplication has been denied; B. An application for assistance or services has not been acted upon within the maximum time period for the category of assistance;

C. The application for assistance has been denied, the benefit has been modified or discontinued, vendor payments have been initiated, requested reconsideration or a benefit amount deemed incorrect has been refused or delayed, payment has been delayed through the holding of payments, the county is demanding repayment for any part of an award to a recipient or former recipient which the recipient does not believe is justified, or the applicant or recipient disagrees with the type or level of benefits or services provided.

3.850.13 The basic objectives and purposes of the appeal and state hearing process are: A. To safeguard the interests of the individual applicant or recipient; B. To provide a practical means by which the applicant or recipient is afforded a protection against incorrect action on the part of the representatives of the state or county departments;

C. To bring to the attention of the state department and county department information which may indicate need for clarification or revision of state and county policies and procedures; D. To assure equitable treatment through the administrative process without resort to legal action in the courts.

3.850.14 Any clear expression in writing by the individual, or someone legally authorized to act for him, that he wants an opportunity to have a specific action of a county department reviewed by the state department is considered an appeal and a request for a hearing. The county department shall, when asked, aid the person in preparation of a request for a hearing. If the request for a 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 on which the request is based and the reason for appealing that action. 3.850.15 The applicant/recipient is entitled to:

A. Be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or he may represent himself;

B. With the exception of the names of confidential informants, privileged communications between the county departments and its attorney, and the nature and status of pending criminal prosecutions, examine the complete case file and any other documents, records, or pertinent material to be used by the county at the hearing, at a reasonable time before the date of hearing and during the hearing.

3.850.16 The applicant/recipient, staff of the county department, and staff of the state department are entitled to:

A. Present witnesses;

B. Establish all pertinent facts and circumstances;

C. Advance any arguments without undue interference;

D. Question or refute any testimony or evidence, including opportunity to confront and cross- examine adverse witnesses.

3.850.2 AUTHORITY AND DUTIES OF STATE ADMINISTRATIVE LAW JUDGE 3.850.21 [Rev. eff. 9/15/12] One or more persons from the State Department of General Support Services/Personnel, Office of Administrative Courts, are appointed to serve as Administrative Law Judges for the State Department of Human Services.

.22 The State Administrative Law Judge shall, prior to the hearing, review the reasons for the decision under appeal and be prepared to interpret applicable departmental rules and/or official written county policies governing the Colorado Works Program and pertaining to the issue under appeal in preparation for conduct of the hearing.

.23 For purposes of these rules, the terms "official written county policies governing the Colorado Works Program", or "county policies" are policies or amendments which have been formally adopted by the county board of commissioners setting forth the nature of the Colorado Works Program in that county, subject to the requirements of state rules, state law, federal regulations, and federal law. Such policies include county plan submittals required by the state department. The county shall forward copies of its policies and any subsequent amendments, including effective dates, to the state department and to the Office of Appeals. Individuals appealing a county action shall be provided reasonable opportunity to examine the county's policies. .24 When the applicant/recipient and/or the department are not represented by legal counsel, the Administrative Law Judge shall assist in bringing forth all relevant evidence and issues relating to the appeal. This will include granting the right of either party to submit pertinent questions to the other pursuant to appropriate rules of civil procedure. 3.850.3 STATE RESPONSIBILITIES 3.850.31 [Rev. eff. 9/15/12] Upon receipt by the Office of Administrative Courts of an appeal request, it is assigned a number. A hearing date is set at least ten (10) days in advance, and a letter by First Class or Certified Mail is sent to the appellant and the county department notifying them of the date, time, and place of the hearing. The appellant is told that if these arrangements are not satisfactory to notify the Office of Administrative Courts and, if good cause therefore exists, consideration will be given to changing them. An information sheet shall be enclosed to explain the hearing procedures to the appellant. The appellant is informed of his right to representation, that he or his representative has the right to examine all materials to be used at the hearing, before and during the hearing. The appellant also is informed that 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 a dismissal thereof. Information which the appellant or his representative does not have an opportunity to see 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 his representative. .32 In assistance payments, Colorado Works Program and medical assistance eligibility appeals, the Administrative Law Judge has 20 days from the hearing date to arrive at an initial decision. The initial decision shall not be implemented pending review by the Office of Appeals and entry of a final agency decision. All agency decisions on these appeals shall be made within ninety (90) days from the date of the request for hearing is received. .33 In all other appeals, the Administrative Law Judge shall arrive at an initial decision (which is not to be implemented) within a reasonable timeframe. All final agency decisions on those matters shall also be made within a reasonable period of time.

.34 Once the initial decision has been made, it shall immediately be delivered to the State Department of Human Services, Office of Appeals, for determination of the final agency decision. 3.850.4 COUNTY RESPONSIBILITIES 3.850.41 [Rev. eff. 9/15/12] When the applicant/recipient has had a local dispute resolution conference and wishes to appeal the county department's decision, the following procedures are to be followed: A. As part of the local conference the applicant or recipient is informed that if he wishes to appeal to the Office of Administrative Courts for a hearing, the county department will assist him in organizing the facts supporting his claim, if he so desires, and that he may have the opportunity to examine materials as described in the section concerning opportunity for State Level Fair Hearing;

B. The county will forward a copy of the decision and a copy of the written notification given to the applicant/recipient of the proposed adverse action to the Office of Administrative Courts.

3.850.42 [Rev. eff. 9/15/12] When the applicant/recipient makes his/her appeal directly to the Office of Administrative Courts, a copy of the notice to the appellant setting a date for the hearing is forwarded to the county department. Upon receipt by the county department, the county department prepares and mails a letter to the appellant with a copy to the Office of Administrative Courts, no later than five (5) days prior to the hearing, giving the following information: A. The reasons for the decision of the county department and specific explanation of each factor involved, such as the amount of excess property or income, assignment or transfer of property, residence factors, service needs;

B. The specific state rules and/or the official written county policy(s) governing the Colorado Works Program on which the decision is based and numeric reference to each such rule, including the appropriate Code of Colorado Regulations (CCR) cites; C. Notice that the county department will assist him/her in organizing the facts supporting his/her claim, if s/he so desires, and that s/he may have the opportunity to examine regulations and other materials to be used at the hearing concerning the basis of the county decision. 3.850.43 [Rev. eff. 9/15/12] If the dispute concerns services or benefits under the Colorado Works Program, the county shall forward a copy of the county’s official written policy(s) to the Office of Administrative Courts. If the appellant indicates that s/he desires to withdraw his/her appeal, a statement to that effect shall be obtained from him/her in writing and forwarded to the Office of Administrative Courts. The county department shall also advise the Office of Administrative Courts by telephone, as soon as it is ascertained that the appeal has been withdrawn and that the appellant will not attend the hearing.

3.850.44 [Rev. eff. 7/1/89] If an individual who files an appeal is to be represented by legal counsel, or other representative, at the pending hearing, the county department will not discuss with the individual the merits of the appeal or the question of whether or not to proceed with it unless in the presence of, or with the permission of, such counsel or such other designated representative. 3.850.45 [Rev. eff. 7/1/89] If the county department learns that the applicant or recipient will be represented by legal counsel, the county department shall make every effort to insure that it too is represented by an attorney at the hearing. The county department may be represented by an attorney in any other appeal that it considers such representation desirable. 3.850.46 [Rev. eff. 7/1/89] If the appellant 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. 3.850.47 [Rev. eff. 9/15/12] The fact that an appellant and the county department have been notified that a hearing will be held does not prevent the county department from reviewing the case and considering any new factors which might change the status of the case, taking such action as may be indicated to reverse its decision or otherwise settle the issue. Any change which results in a voiding of the cause of appeal shall be immediately reported to the Office of Administrative Courts by telephone. 3.850.48 [Rev. eff. 7/1/89] Upon receipt of notice of a State hearing on an appeal, the county department shall arrange for a suitable 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; absence of distracting noise; need for table, chairs, electrical outlet, adequate lighting and ventilation, and conference telephone facilities.

3.850.5 CONDUCT OF STATE HEARINGS .50 Conference telephonic hearings may be conducted unless otherwise requested by any of the parties, as an alternative to face-to-face hearings. All applicable provisions of the face-to-face hearings procedures will apply, such as the right to be represented by counsel, the right to examine and cross-examine witnesses, the right to examine the contents of the case file, and the right to have the hearing conducted at a reasonable time and date.

.51 The Administrative Law Judge shall conduct the hearings in accordance with the Colorado Administrative Procedure Act (Section 24-4-105, C.R.S.). .52 The county department shall have the burden of proof, by a preponderance of the evidence, to establish the basis of the ruling being appealed. Every party to the proceeding shall have the right to present his case or defense by oral and documentary 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. 3.850.6 PROCEDURE OF HEARING 3.850.61 Procedure Before ALJ [Rev. eff. 9/15/12] The following provisions govern the procedure at state hearings before the Administrative Law Judge:

A. The hearing is private; however, any person or persons whom the appellant wishes to appear for him may be present, and, if requested by the appellant and in the record, such hearing may be public;

B. The purpose of the hearing is to determine the pertinent facts in order to arrive at a fair and equitable decision in accordance with the rules of the State Department. In arriving at a decision, only the evidence and testimony introduced at the hearing is considered, except that the Administrative Law Judge may permit the introduction of medical or other evidence after the hearing, provided the opposing party is also furnished a copy and is afforded the opportunity to controvert or otherwise respond to such evidence, in circumstances when it is shown, at the hearing, that such evidence could not, for good cause, be obtained in time for the hearing. Delays in rendering the Initial Decision will be charged to the party requesting the delay;

C. Although the hearing is conducted on an informal basis and an effort is made to place all the parties at ease, it is essential that the evidence be presented in an orderly manner so as to result in an adequate record;

D. A complete and exact record of the proceedings shall be made by electronic or other means. When required, the Office of Administrative Courts shall cause the proceedings to be transcribed.

3.850.62 When the Administrative Law Judge dismisses an appeal for reasons other than failure to appear, the decision of the Administrative Law Judge shall be an initial decision, which shall not be implemented pending review by the Office of Appeals and entry of an agency decision. 3.850.63 The Administrative Law Judge shall not enter a default against any party for failure to file a written answer in response to the notice of hearing, but shall base the initial decision upon the evidence introduced at the hearing. An appellant may be granted a postponement of the hearing, however, if the county department has failed to provide the statement required by section 3.850.42 and the appellant has therefore been unable to prepare for the hearing. 3.850.64 [Rev. eff. 9/15/12] When 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 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 an order of dismissal shall be entered by the Administrative Law Judge and served upon the parties by the Office of Administrative Courts. The dismissal order shall not be implemented pending review by the Office of Appeals and entry of an agency decision.

The appellant, however, shall be afforded a ten-day period from the date the order of dismissal was mailed, during which the appellant may explain in a letter to the Administrative Law Judge the reason for his/her failure to appear. If the Administrative Law Judge then finds that there was acceptable good cause for the appellant not appearing, the Administrative Law Judge shall vacate the order dismissing the appeal and reschedule another hearing date. If the appellant does not submit a letter seeking to show good cause within the 10-day period, the order of dismissal shall be filed with the Office of Appeals of the State Department. The Office of Appeals shall confirm the dismissal of the appeal by an agency decision, which shall be served upon the parties. 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. If the appellant submits a letter seeking to show good cause and the Administrative Law Judge finds that the stated facts do not constitute good cause, the Administrative Law Judge shall enter an initial decision confirming the dismissal. The appellant may file exceptions to the initial decision pursuant to Section 3.850.72, A.

3.850.65 Interim Relief (Not Applicable to Colorado Works or Child Care Assistance Programs) 3.850.651 Upon written sworn application accompanied by appropriate financial statement, the appellant may, at any time prior to the hearing of an action concerning termination or reduction of assistance or services, apply for an agency order (the Administrative Law Judge is designated as representing the agency in such matters) granting interim relief to prevent irreparable injury. The order, if made, shall continue in force until the Final Agency Decision. The order shall contain a specific finding based upon evidence submitted to the Administrative Law Judge that specified irreparable damage will result if the order is not granted. A copy of such decision shall be sent to the county department. In the event the Final Agency Decision is against the appellant, recovery shall be considered for all funds expended under the order of interim relief subject to recovery rules.

3.850.652 The county department shall provide to the appellant the assistance or service specified in an agency order granting interim relief as soon as possible but not later than ten calendar days from the date of receipt of such order. 3.850.653 The appellant need not request interim relief if he/she is eligible for continued benefits pursuant to Section 3.800.34 of this staff manual.

3.850.7 DECISION AND NOTIFICATION .71 INITIAL DECISION Following the conclusion of the hearing, the Administrative Law Judge shall promptly prepare and issue an initial decision and file it with the Office of Appeals of the State Department of Human Services.

The initial decision shall make an initial determination whether the county or state department or its agent acted in accordance with, and/or properly interpreted, the rules of the state department and/or the official written policies of the county board of social services for administering the Colorado Works Program. The Administrative Law Judge may determine whether statutes were properly interpreted and applied only when no implementing state rules or county department policy exist. The Administrative Law Judge has no jurisdiction or authority to determine issues of constitutionality or legality of departmental rules or county policy governing the county's Colorado Works Program.

The initial decision shall advise the applicant/recipient 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.

The Office of Appeals shall promptly serve the initial decision upon each party by first class mail, and shall transmit a copy of the decision to the division of the state department which administers the program(s) pertinent to the appeal.

The initial decision shall not be implemented pending review by the Office of Appeals and entry of an agency decision.

3.850.72 Review by the Office of Appeals [Rev. eff. 9/15/12] The Office of Appeals of the State Department, as the designee of the Executive Director, shall review the initial decision of the Administrative Law Judge and shall enter a final agency decision affirming, modifying, reversing, or remanding the initial decision. A. Any party seeking an agency decision which reverses, modifies, or remands the initial decision of the Administrative Law Judge shall file exceptions to the decision with the State Department, Office of Appeals, within fifteen (15) days (plus three days for mailing) from the date the initial decision is mailed to the parties. Exceptions must state specific grounds for reversal, modification or remand of the initial decision. If the party asserts that the Administrative Law Judge's findings of fact are not supported by the weight of the evidence, the party shall simultaneously with or prior to the filing of exceptions request the Office of Administrative Courts to cause a transcript of all or a portion of the hearing to be prepared and filed with the Office of Appeals. The exceptions shall state that a transcript has been requested, if applicable. Within 5 days of the request for transcript, the party requesting it shall advance the cost therefore to the transcriber designated by the Office of Administrative Courts unless prior payment is waived by the transcriber.

A party who is unable because of indigency to pay the cost of a transcript may file a written request, which need not be sworn, with the Office of Appeals for permission to submit a copy of the hearing recording instead of the transcript. If submission of a recording is permitted, the party filing exceptions must promptly request a copy of the recording from the Office of Administrative Courts and deliver it to the Office of Appeals. Payment in advance shall be required for the preparation of a copy of the recording. If the exceptions do not challenge the findings of fact, but instead assert only that the Administrative Law Judge improperly interpreted or applied State rules or statutes, the party filing exceptions is not required to provide a transcript or recording to the Office of Appeals.

The Office of Appeals shall serve a copy of the exceptions on each party by First Class mail. Each party shall be limited to ten (10) calendar days from the date exceptions are mailed to the parties in which to file a written response to such exceptions. The Office of Appeals shall not permit oral argument.

The Office of Appeals shall not consider evidence which was not part of the record before the Administrative Law Judge. However, the case may be remanded to the Administrative Law Judge for rehearing if a party establishes in its exceptions that material evidence has been discovered which the party could not with reasonable diligence have produced at the hearing.

While review of the initial decision is pending before the Office of Appeals, the record on review, including any transcript or recording of testimony filed with the Office of Appeals, shall be available for examination by any party at the Office of Appeals during regular business hours.

B. The Division(s) of the state department responsible for administering the program(s) relevant to the appeal 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 3.850.72, A, above. Exceptions filed by a division that did not appear as a party at the hearing shall be treated as requesting review of the initial decision upon the state department's own motion.

C. In the absence of exceptions filed by any party or by a division of the State Department of Human Services, the Office of Appeals shall review the initial decision, and may review the hearing file of the Administrative Law Judge and/or the recorded testimony of witnesses, before entering a final agency decision. Review by the Office of Appeals shall determine whether the decision properly interprets and applies the rules of the State Department, or relevant statutes, and whether the findings of fact and conclusions of law support the decision. If a party or division of the state department objects to the agency decision entered upon review by the Office of Appeals, the party or division may seek reconsideration pursuant to section 3.850.73, below.

D. The Office of Appeals shall mail copies of the final agency decision to all parties by First Class mail.

E. For purposes of requesting judicial review, the effective date of the final agency decision shall be the third day after the date the decision is mailed to the parties, even if the third day falls on Saturday, Sunday, or a legal holiday. The parties shall be advised of this in the agency decision.

F. The state or county department shall initiate action to comply with the final agency decision within three working days after the effective date. The department shall comply with the decision even if reconsideration is requested, unless the effective date of the agency decision is postponed by order of the Office of Appeals or a reviewing court. 3.850.73 RECONSIDERATION OF AGENCY DECISION A motion for reconsideration of a final agency decision may be granted by the Office of Appeals for the following reasons:

A. Upon a showing of good cause for failure to file exceptions to the initial decision within the 15 day period allowed by section 3.850.72, A; or B. Upon a showing that the agency decision is based upon a clear or plain error of fact or law. An error of law means failure by the Office of Appeals to follow a rule, statute, or court decision which controls the outcome of the appeal.

No motion for reconsideration shall be granted unless it is filed in writing with the Office of Appeals within 15 days of the date that the agency decision is mailed to the parties. The motion must state specific grounds for reconsideration of the agency decision. The Office of Appeals shall mail a copy of the motion for reconsideration to each party of record and to the appropriate division of the state department. .74 When an appeal results in a decision that an action of the county or state department was not in accordance with rules of the department, or when the county or state department so determines after a request for a hearing is made, the adjustment or corrective payment is made retroactively to the date of the incorrect action.

3.850.75 [Rev. eff. 9/15/12] The applicant/recipient is to be fully informed by the final agency decision of his further right to apply for judicial review of the Agency Decision by the filing of an action for review in the appropriate State District Court. Any such action must be filed in accordance with the Rules of Civil Procedure for Courts of Record in Colorado within thirty (30) days after the Final Agency Decision becomes effective.

.76 The state department will establish and maintain a method for informing, in summary and depersonalized form, all county departments and other interested persons conceming the issues raised and decisions made on appeals.

.77 The Executive Director or designee shall have the power to enter declaratory orders. The Executive Director or designee may, in his/her discretion, entertain and promptly dispose of petitions for declaratory orders to terminate controversies and/or remove uncertainties as to the applicability to the petitioners of any statutory provisions or of any rule. The order of the Executive Director or designee disposing of the petition shall constitute final agency action subject to judicial review. 3.850.8 GROUP HEARINGS AND EXCEPTIONS .81 When a number of individual requests for hearing are received and if the sole issue involved is one of state or federal law or changes in state or federal law, a single group hearing may be conducted. In all group hearings, the policies governing hearings must be followed. Each individual shall be permitted to present his own case or be represented by his authorized representative and is entitled to receive a copy of the written decision.

.82 A hearing shall not be granted when either state or federal law requires an automatic benefit adjustment for classes of 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 medical benefit. .83 Unless properly designated as a representative of an individual, a provider of medical assistance, or any other provider of goods and services to applicants or recipients, shall not be granted a hearing concerning an alleged adverse action to an applicant or recipients. 3.850.9 PROVIDER APPEALS In the case of an appeal by a licensed or certified provider or vendor of services of an adverse action by a county department or the state department related to provider status, rates, or purchased services, the decision of the Administrative Law Judge is the Final Agency Decision and is not subject to state department review or modification. The decision of the Administrative Law Judge is subject to judicial review, pursuant to 24-4-106 and 26-1-106, C.R.S.

3.860 PROTECTIONS TO THE INDIVIDUAL 3.860.1 CONFIDENTIALITY .11 All information obtained by the county department concerning an applicant for or a recipient of assistance payments is confidential information. This is to prevent exploitation of applicants and recipients, to eliminate embarrassment to them, and is in recognition of their rights as self- determining individuals who are not limited because of their need for assistance. .12 The county department shall acquaint county officials and other persons who have dealings with the department as to the confidential nature of information which may come into their possession through transaction of department business.

When a technician consults a bank, former employer of an applicant, another social agency, etc., to obtain information or verification to determine eligibility, the identification of the technician as an employee of the county department will, in itself, disclose that an application for assistance has been made by an individual. In this type of contact, as well as other community contacts, the department should strive to maintain confidentiality whenever possible. .13 Privacy for interviewing and confidentiality of information are essential. This involves both office facilities and discretion by the technician. Office procedures and facilities should be such that information is not inadvertently revealed to persons not concerned with the affairs of a particular individual. The technician must also use discretion in mentioning department business outside the office.

3.860.2 INFORMATION NOT CONFIDENTIAL .21 General information not identified with any individual is not confidential and may be released for any purpose. This includes A. total expenditures;

B. number of recipients;

C. statistical data obtained from studies;

D. social data obtained from studies, reports, or surveys. .22 Information not deemed confidential may be published by newspapers. This includes: A. expenditures by category of assistance;

B. expenditures for administration;

C. salaries paid employees;

D. sum of all department expenditures.

3.860.3 INFORMATION CONFIDENTIAL .31 Information secured by the county department for the purpose of conducting the administration of the assistance payments programs; e.g., determining eligibility and need, is deemed confidential. .32 Unless disclosure is specifically permitted by the state department, the following types of information are the exclusive property of and are restricted to use by the state, and county departments: A. names and addresses of applicants for and recipients of assistance; and/or the amounts of assistance;

B. information contained in applications, reports of medical examinations, correspondence, and other information concerning any person from whom, or about whom, information is obtained by the county department;

C. records of state or county departmental evaluations of the above information. D. All information obtained through the Income and Eligibility Verification System (IEVS). 3.860.4 DISCLOSURE OF CONFIDENTIAL INFORMATION .41 No one outside the county department shall have access to records of the department except for individuals executing Income and Eligibility Verification System (IEVS); Child Support Enforcement officials; federal and state auditors and private auditors for the county; and the applicant/recipient of public assistance. These individuals shall have access only for purposes necessary for the administration of the program. The following individuals shall have access to the records of the department if one of the following conditions is met: A. The applicant or recipient is notified and his/her prior permission for release of information is obtained unless the information is to be used to verify income, eligibility or the amount of medical assistance payment under administration of the Income and Eligibility Verification System (IEVS). If, because of an emergency situation in which the applicant/recipient is physically or mentally incapacitated to the extent that he/she cannot sign the release form, and time does not permit obtaining an applicant's or recipient's consent prior to release of information, the county department must notify the applicant or recipient immediately after supplying the information. The notification shall include the name and address of the agency which requested the information, the reason the information was requested and a summary of the information released. If the applicant or recipient does not have a telephone or cannot be contacted immediately, the county department must send written notification containing the required information within three (3) working days from the date the information was released.

B. A District Attorney requests information for the purpose of either prosecution for fraud or tracing a parent who has deserted a child.

C. Verified information obtained from the Internal Revenue Service through the Income and Eligibility Verification System may be provided only to persons or agencies directly connected with the administration of the Child Support Enforcement program (if administered by an agency outside of the county department), Department of Labor and Employment, the Social Security Administration and other agencies in the state when necessary for the administration of the AFDC, Medicaid, Food Stamp or other state or federally funded means tested assistance programs, or the unemployment insurance program. County departments shall not release information regarding applicants or recipients to law enforcement agencies.

D. Upon request to the State Department of Human Services by the Colorado Bureau of Investigation, with the responsibility for location and apprehension of fugitive felons (i.e., a person with an outstanding felony arrest warrant), the addresses of a fugitive felon who is a recipient of OAP, AND, AB, or AFDC shall be released. .42 The applicant/recipient shall have an opportunity to examine such pertinent records concerning him as constitute a basis for adverse action and in the case of a county evidentiary hearing or a State appeal. Other requests for information shall be honored only when the individual makes the request in person and his/her identify is verified or the request is in the form of a written, signed, notarized statement.

The applicant/recipient may designate an individual, firm, or agency to represent him at conferences, hearings, and appeals. The representative shall be designated by the completion of Form IM-17, "Designation of Representative." The representative shall have access to all pertinent records.

.43 Information concerning applicants for or recipients of assistance may be released to District Attorneys or County Commissioners upon their presenting a written request accompanied by evidence that a fraud or deserting parent situation is the reason for the request. The release is strictly conditioned upon the information being used solely for one of the two purposes authorized and the person requesting the information must certify the use to be made of the information and that it will not be disclosed or used for any other purpose. No certification shall be required of the county board of social services when its members are acting in their official capacity in administration of social services programs.

.44 The applicant/recipient may give a formal written release for disclosure of information to other agencies, such as hospitals, or the permission may be implied by the action of the other agency in rendering service to him. Before information is released, the county department should be reasonably sure the confidential nature of information will be preserved, the information will be used only for purposes related to the function of the inquiring agency, and the standards of protection established by the inquiring agency are equal to those established by the State Department. If the standards for protection of information are unknown, a written consent from the recipient shall be obtained.

.45 Information obtained through the Income and Eligibility Verification System (IEVS) will be stored and processed so that no unauthorized personnel can acquire or retrieve the information. County departments are responsible for limiting IEVS data to only those individuals requiring access to determine eligibility or otherwise administer the programs. All persons with access to information obtained pursuant to the Income and Eligibility Verification requirements will be advised of the circumstances under which access is permitted and the sanctions imposed for illegal use or disclosure of the information. .46 The name of a recipient is not given to a group or individual sponsoring Christmas or other holiday projects without first clearing with the recipient to determine whether the family desires to participate in such a project. In most cases, plans may be worked out by which recipients may benefit by the projects without violation of the confidential nature of records. .47 Case records shall not be available to volunteer workers for reading. Selected information concerning an individual or family will be available to a volunteer only if such information is determined necessary by the volunteer's supervisor.

.48 When a County Commissioner or a District Attorney wishes information about a recipient which is not in the possession of the county department, the requestor, with the aid of the department, contacts the State Department, Income Maintenance Division, as to the appropriate methods of securing such information.

.49 Upon request of the county board; county directors, State Department, or District Attorney of the State, the county department shall supply all information on hand regarding the absent parent including but not limited to location, employment, income, and property. This information shall be used only in enforcing support liability of the absent parents or for the prosecution of such persons and shall not be used for any other purpose.

3.860.5 Protection Against Discrimination 3.860.51 County departments are to administer assistance programs in such a manner that no person will, on the basis of race, color, sex, age, religion, political belief, national origin, or disability, be excluded from participation, be denied any aid, care, services, or other benefits of, or be otherwise subjected to discrimination in such program.

3.860.52 The county department shall not, directly or through contractual or other arrangements, on the grounds of race, color, sex, age, religion, political belief, national origin, or disability: A. Provide any aid, care, services, or other benefits to an individual which is different, or is provided in a different manner, from that provided to others; B. Subject an individual to segregation barriers or separate treatment in any manner related to access to or receipt of assistance, care services, or other benefits; C. Restrict an individual in any way in the enjoyment or any advantage or privilege enjoyed by others receiving aid, care, services, or other benefits provided under assistance programs;

D. Treat an individual differently from others in determining whether he/she satisfies any eligibility or other requirements or conditions which individuals must meet in order to receive aid, care, services, or other benefits provided under assistance programs; E. Deny an individual an opportunity to participate in programs of assistance through the provision of services or otherwise, or afford him/her an opportunity to do so which is different from that afforded others under programs of assistance. F. Deny a person the opportunity to participate as a member of a planning or advisory body that is an integral part of the program.

3.860.53 The references to "aid, care, services or other benefits" includes all forms of assistance. including direct and vendor payments, work programs, social services, and information and referral services.

3.860.54 No distinction on the grounds of race, color, sex, age, religion, political belief, national origin, or disability is permitted in relation to the use of physical facilities, intake and application procedures, caseload assignments, determination of eligibility, and the amount and type of benefits extended by the county department to assistance recipients.

3.860.55 The county department shall assure that other agencies, persons, contractors and other entities with which it does business are in compliance with the above prohibition of discrimination requirements on a continuing basis. The county department staff is responsible for being alert of any discriminatory activity of other agencies and for notifying the State Department concerning the situation.

3.860.56 The State Department, through its various contacts with agencies, persons, and referral sources, will be continuously alert to discriminatory activity and will take appropriate action to assure compliance by the offender. If corrective action is not taken, the State Department will notify the agency of termination of payments and association in regard to recipients or applicants. The county department, on notification by the State Department, will also terminate payments to or association with any agency, person, or resource being used which has been found to continue discriminatory activity in regard to applicants or recipients. 3.860.57 An individual who believes he/she is being discriminated against may file a complaint with the county department, the State Department, or directly with the Federal government. When a complaint is filed with the county department, the county director is responsible for an immediate investigation of the matter and taking necessary corrective action to eliminate any discriminatory activities found. If such activities are not found, the individual is given an explanation. If the person is not satisfied, he/she is requested to direct his/her complaint, in writing, to the State Department, Complaint Section, which will be responsible for further investigation and other necessary action consistent with the provisions of Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act (ADA), the Age Discrimination Act of 1975. The State Department will also carry out these activities in regard to a complaint received directly from an individual.

3.860.58 Upon receipt of a complaint alleging discrimination due to race, color, sex, age, religion, political belief, national origin, or disability, the State Department shall explain public assistance policy to the individual. If there is insufficient information as to the nature or other detail concerning the complaint, the State Department shall contact the county department in writing to obtain such information. Copies of the letter shall be sent to the complainant and field administrator. The county department shall reply in writing.

If the State Department determines the county department action is not discriminatory and the applicant/recipient disagrees, the applicant/recipient has the right to appeal the case to the State Department. This appeal shall be filed in accordance with the appeal regulations as described in the "Protections to the Individual" section.

If it is found that a county department practice or action is discriminatory, the State Department shall immediately initiate a corrective action to assure that any and all discriminatory practices are permanently terminated.

3.870 QUALITY ASSURANCE 3.870.1 PURPOSE AND METHODS OF QUALITY ASSURANCE REVIEW .11 Quality assurance reviews of the Aid to Families with Dependent Children (AFDC) program are federally mandated to: (1) reduce incorrect expenditures by identifying the nature, magnitude and causes of all errors; (2) improve the accuracy of payments to recipients of AFDC assistance; (3) obtain data on the correctness of negative case actions; (4) reduce the incidence of incorrect denials for and terminations of assistance; (5) calculate state AFDC error rates; and, (6) disallow federal financial participation when the state's payment error rate is in excess of the national standard (federal error rate target). These data are gathered through continuous review of statistically random samples of active and negative AFDC cases. The reviews are conducted during the annual federal quality assurance review period, which is the 12-month period from October 1 of each calendar year through September 30 of the following calendar year. Results of quality assurance reviews are used as the basis for corrective action planning to reduce or eliminate the causes of incorrect AFDC payments, denials or terminations. .12 An "active case" means all individuals whose needs, income and resources were considered in the determination of eligibility and payment for the sample month. The review establishes whether the sampled active case was, in fact, eligible and whether the proper payment amount was authorized prior to sample selection and issued for the review month. A "negative case" means an action taken by the county department to terminate assistance effective for the sample month or an action taken to deny an application for assistance in the sample month. The review establishes whether the action taken to terminate assistance or deny an application was correct.

.14 The quality assurance review includes an examination and analysis of the case record; a field investigation with a face-to-face interview on all cases in the active sample; a desk review of negative case actions; verification and documentation of all required elements through contacts with appropriate collateral sources of information; the securing of specified primary and secondary evidence; a determination of the correctness of the eligibility and payment decisions; and, the reporting of the review findings.

3.870.2 QUALITY ASSURANCE REVIEW PROCEDURES .21 Each month a random sample of active and negative cases is selected for quality assurance review. Case records for the monthly selected samples may be reviewed by Quality Assurance in the county departments, or the county may be requested to forward the case records to the appropriate State Quality Assurance office for review.

.22 When the county department receives a request for one or more cases for quality assurance review, the following steps shall be taken in preparing the case record: A. All forms and notes pertinent to the case review shall be included in the case record. The last known address shall also be included.

B. The case record is either made available for the Quality Assurance reviewer to review in the county department or is mailed to the appropriate State Quality Assurance office. .23 The active and negative case records selected for review are analyzed and evaluated for conformity to the policies and procedures set forth in federal regulations and in the state rules. The focus of the active review is on testing eligibility and correctness of payment for the sample month and whether the documentation in the case file supports the eligibility determination. The focus of the negative review is to verify through the documentation in the case file whether the decision to deny or terminate assistance was correct and that the county adhered to adequate notice, hearing requirements and continued benefits when appropriate. .24 Field investigations are conducted by the reviewer for all selected active cases. Clients are ordinarily visited in their own homes. During the interview the reviewer shall establish the identity, relationship and actual living arrangements of all members of the household; obtain the recipient's statement and documentation concerning each eligibility and payment element; obtain documentary evidence; secure information about collateral sources of verification; and, obtain the names of collateral contacts. All information gathered in the course of the case record analysis and the field visit relating to eligibility is verified. 3.870.3 QUALITY ASSURANCE FINDINGS AND REQUIRED RESPONSES .31 Quality Assurance shall notify the county departments on state prescribed forms of the review findings for each sampled active and negative case. Brief descriptions of the findings shall be given with references to applicable staff manual sections. .32 When the review findings document no error and/or only other observations have been noted, no further action is required by the county department.

.33 When the review findings document that an error resulted in ineligibility, overpayment, underpayment, or an incorrect negative action the county department shall respond to the review findings by completing the state prescribed form documenting the corrective action taken or rebutting the amount or finding of error. The response shall be forwarded to the State Department within ten (10) working days from receipt of the Quality Assurance review finding notification. .34 Upon receiving the county department's response to the quality assurance review findings, the State Department shall review the action taken by the county department and either concur with the quality assurance findings; concur with the county rebuttal; or concur/nonconcur with the corrective action taken by the county. The county department shall be notified of the final quality assurance review findings.

3.870.4 FEDERAL QUALITY ASSURANCE REVIEWS For purposes of validating the state's Quality Assurance payment error findings, the Administration for Families and Children Federal Regional Office conducts a subsample re-review of the state's sample. As part of this re-review process the Federal Regional Office may request case files. County departments shall forward case records that are selected to be subsampled by Federal Quality Assurance to the Regional Office within ten (10) days of the request.

3.880 LISTINGS TO COUNTIES FROM STATE 3.880.1 PURPOSE OF LISTINGS .11 The listings and reports are computer printed and are to be used as tools by the county departments in their administration of the programs.

3.880.2 LISTINGS - ALL CATEGORIES .21 BENDEX A. a monthly report that combines information from the SMIB Buy-In report and the AP-700 file; B. the report is used to obtain and verify SSA amounts. .22 IDEX A. a quarterly report that combines information from the Department of Labor and Employment and the AP-700 file;

B. the report is used to obtain and verify individual earnings. .23 Motor Vehicle Ownership A. a periodic report that combines information from the Motor Vehicle Division and the AP-700 file;

B. the report is used to verify automobile ownership when evaluating resources of an individual or family.

.24 Redeterminations A. the following reports are prepared monthly from the AP-700 file: 1. listing of cases due for redetermination - 1 1/2 months prior to due date, 2. listing of overdue redeterminations as of last day of due month, 3. listing of cases where reimbursement is to be withheld; B. the reports are used as tickler files for the redetermination process. .25 SDX A. a monthly report that combines information from the Social Security SSI report and the AP- 700 file;

B. the report is used to obtain and verify SSI and SSA amounts. .26 Social Security Numbers A. a periodic report from information provided by Social Security of assigned account numbers when the SS-5 has county identification;

B. the report is used to obtain and verify SSA account numbers. _________________________________________________________________________ Editor’s Notes Primary sections of 9 CCR 2503-1 have been recodified effective 09/15/2012. See list below. Versions and rule history prior to 09/15/2012 can be found in 9 CCR 2503-1. Prior versions can be accessed from the History link located above the rule text.

Rule section 3.000 – 3.100, et seq. has been recodified as 9 CCR 2503-1, GENERAL RULES. Rule section 3.200, et seq. has been recodified as 9 CCR 2503-2, GENERAL FINANCIAL ELIGIBILITY CRITERIA.

Rule section 3.300, et seq. has been recodified as 9 CCR 2503-3, OLD AGE PENSION. Rule section 3.400, et seq. has been recodified as 9 CCR 2503-4, AID TO THE NEEDY DISABLED AND AID TO THE BLIND.

Rule section 3.500, et seq. has been recodified as 9 CCR 2503-5, (Reserved for Future Use). Rule section 3.600, et seq. has been recodified as 9 CCR 2503-6, COLORADO WORKS PROGRAM.

Rule section 3.700, et seq. has been recodified as 9 CCR 2503-7, OTHER ASSISTANCE PROGRAMS.

Rule section 3.800, et seq. has been recodified as 9 CCR 2503-8, ADMINISTRATIVE PROCEDURES.

Rule section 3.900, et seq. has been recodified as 9 CCR 2503-9, COLORADO CHILD CARE ASSISTANCE PROGRAM.

History Sections 3.800.51 – 52, 3.810.13, 3.830.22 – 24, 3.840.12, 3.850.11, 3.850.21, 3.850.31, 3.850.41 – 43, 3.850.47, 3.850.61, 3.850.64, 3.850.72, 3.850.75, eff. 09/15/2012; sections 3.800.53 – 54, 3.800.6, 3.810.6 – 3.810.62, 3.811 – 3.811.57 repealed eff. 09/15/2012.