REGULATIONS CONCERNING PRIVATE PLANS
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Code of Colorado Regulations › 1100 Department of Labor and Employment › 1107 Division of Family and Medical Leave Insurance › 7 CCR 1107-5
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DEPARTMENT OF LABOR AND EMPLOYMENT
Division of Family and Medical Leave Insurance
REGULATIONS CONCERNING PRIVATE PLANS
7 CCR 1107-5
[Editor’s Notes follow the text of the rules at the end of this CCR Document.]
______________________________________________________________________
5.1
Statements of Authority, Purpose, and Incorporation by Reference
1.
This regulation is adopted pursuant to the authority in section C.R.S. § 8-13.3-
501 et seq., and is intended to be consistent with the requirements of the State
Administrative Procedures Act, section 24-4-101 et seq. (the “APA”), C.R.S. and
the Paid Family and Medical Leave Insurance Act, sections C.R.S. § 8-13.3-501
et seq. (the “FAMLI Act”).
2.
The general purpose of these rules is to exercise the authority of this Division to
enforce and implement the Paid Family and Medical Leave Insurance Act (C.R.S.
§ 8-13.3-501 et seq.) with regard to private plans.
3.
7 CCR 1101-2 (2025) is hereby incorporated by reference. Earlier versions of
such laws and regulations may apply to events that occurred in prior years. Such
incorporation excludes later amendments to or editions of the statutes and
regulations. These statutes and regulations are available for public inspection at
the Colorado Department of Labor and Employment, Division of Family and
Medical Leave Insurance, 707 17th Street, Denver, CO 80202. Copies may be
obtained from this Division at a reasonable charge, or can be accessed
electronically from the website of the Colorado Secretary of State. Pursuant to
C.R.S. § 24-4-103(12.5)(b), the agency shall provide certified copies of the
statutes and regulations incorporated at cost upon request or shall provide the
requestor with information on how to obtain a certified copy of the material
incorporated by reference from the agency originally issuing the statutes. All
Division Rules are available to the public at famli.colorado.gov.
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State. Pursuant to
C.R.S. § 24-4-103(12.5)(b), the agency shall provide certified copies of the
statutes and regulations incorporated at cost upon request or shall provide the
requestor with information on how to obtain a certified copy of the material
incorporated by reference from the agency originally issuing the statutes. All
Division Rules are available to the public at famli.colorado.gov.
4.
If any part of these rules is held invalid, the remainder shall remain valid, and if
any part is held not wholly invalid, but in need of narrowing, it will be retained in
narrowed form.
5.2
Definitions and Clarifications
1.
Unless otherwise indicated, terms used here that are defined in the FAMLI Act
have the same definition as they do under the FAMLI Act.
Code of Colorado Regulations
Secretary of State
State of Colorado
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2.
These rules govern employees who are localized to Colorado pursuant to 7 CCR
1107-1, and govern employers and private plan administrators with regard to
employees who are localized to Colorado pursuant to 7 CCR 1107-1. These
rules do not govern employees who are not localized to Colorado pursuant to 7
CCR 1107-1, and do not govern employers or private plan administrators with
regard to employees who are not localized to Colorado pursuant to 7 CCR 1107-
1.
3.
“Additional conditions or restrictions” as used in C.R.S. § 8-13.3-521(1)(i) means
material conditions or restrictions, and does not include incidental conditions or
restrictions that do not interfere with, restrict, or lessen an employee’s rights
under FAMLI Act.
4.
“Adverse determination” means either a complete denial of benefits, or a
determination to award a claimant benefits in a frequency or duration less than
the claimant requested, or a determination to award a wage replacement amount
less than what the claimant believes they are entitled to under the FAMLI Act and
its implementing regulations.
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ict, or lessen an employee’s rights
under FAMLI Act.
4.
“Adverse determination” means either a complete denial of benefits, or a
determination to award a claimant benefits in a frequency or duration less than
the claimant requested, or a determination to award a wage replacement amount
less than what the claimant believes they are entitled to under the FAMLI Act and
its implementing regulations.
5.
“Insurer approved by the state” as used in C.R.S. § 8-13.3-521(2)(c) and these
rules means an insurance provider licensed by the Division of Insurance within
the Colorado Department of Regulatory Agencies, and in good standing with the
Division of Insurance in accordance with its regulations.
6.
“Private plan administrator” means an entity or individual tasked with the
administration of an approved private plan, and can include without limitation the
employer, a third-party administrator, a labor union, and/or an insurer approved
by the state.
7.
“Rights, protections, and benefits provided to employees under this part 5” as
used in C.R.S. § 8-13.3-521(1) includes any rights, protections, and benefits
conferred by rules promulgated under the FAMLI Act and its implementing
regulations.
8.
“Wages” has the same meaning as in 7 CCR 1107-1, Section 1.2.9.
5.3
Private Plan Requirements
1.
An employer may comply with the FAMLI Act by providing an approved private
plan that provides all of the same rights, protections and benefits provided to
employees by the FAMLI Act and its implementing regulations, including but not
limited to:
A.
Allowing family and medical leave insurance benefits to be taken for all
purposes specified in C.R.S. § 8-13.3-504(2);
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approved private
plan that provides all of the same rights, protections and benefits provided to
employees by the FAMLI Act and its implementing regulations, including but not
limited to:
A.
Allowing family and medical leave insurance benefits to be taken for all
purposes specified in C.R.S. § 8-13.3-504(2);
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B.
Providing family and medical leave insurance benefits to a covered
individual for any of the purposes, including multiple purposes in the
aggregate, as set forth in C.R.S. § 8-13.3-504(2), for the maximum
number of weeks required in C.R.S. § 8-13.3-505(1) in a benefit year as
defined in 7 CCR 1107-3 Section 3.2.4;
C.
Allowing family and medical leave insurance benefits under C.R.S. § 8-
13.3-504(2)(b) to be taken to care for any family member as defined under
C.R.S. § 8-13.3-503(11) and 7 CCR 1107-3 Section 3.4.6;
D.
Allowing family and medical leave insurance benefits under C.R.S. § 8-
13.3-504(2)(c) to be taken by a covered individual with any serious health
condition;
E.
Allowing family and medical leave insurance benefits under C.R.S. § 8-
13.3-504(2)(e) to be taken for any safe leave purposes;
F.
Providing a wage replacement rate for all family and medical leave
insurance benefits of at least the amount required by C.R.S. § 8-13.3-
506(1)(a), and issuing payments no less frequently than required by
C.R.S. § 8-13.3-505(2);
G.
Providing a maximum weekly benefit for all family and medical leave
insurance benefits of at least the amount specified in C.R.S. § 8-13.3-
506(1)(b);
H.
Allowing a covered individual to take intermittent leave as authorized by
C.R.S. § 8-13.3-505(3) or a reduced leave schedule pursuant to 7 CCR
1107-3;
I.
Imposing no additional conditions or restrictions on family and medical
leave insurance benefits, or paid family and medical leave taken in
connection therewith, beyond those explicitly authorized by the FAMLI Act
or regulations issued pursuant to the FAMLI Act;
J
individual to take intermittent leave as authorized by
C.R.S. § 8-13.3-505(3) or a reduced leave schedule pursuant to 7 CCR
1107-3;
I.
Imposing no additional conditions or restrictions on family and medical
leave insurance benefits, or paid family and medical leave taken in
connection therewith, beyond those explicitly authorized by the FAMLI Act
or regulations issued pursuant to the FAMLI Act;
J.
Allowing any employee covered under the private plan who is eligible for
family and medical leave insurance benefits under the FAMLI Act to
receive benefits and take paid family and medical leave under the private
plan; and
K.
Providing that the cost to employees covered by a private plan shall not be
greater than the cost charged to employees under the state plan under
C.R.S. § 8-13.3-507.
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2.
Subject to the limitations described at Section 5.5.3 of these rules, an approved
private plan shall be in the form of either self-insurance or a policy obtained
through an insurer approved by the state. An insurer shall not allow coverage for
an employer under its policy to become effective earlier than thirty (30) days after
the employer has received private plan approval from the FAMLI Division.
3.
Private plans must offer benefits to all covered individuals employed by the
employer. Nothing prohibits a private plan from covering multiple employers’
workforces; however, if an employer intends to meet its obligations under the
FAMLI Act and its implementing regulations with an approved private plan, it
must apply for private plan approval, pay the administrative fee described in
these rules, pay the maintenance fee described in these rules, and otherwise
comply with these rules regardless of how many other employers use or intend to
use the same private plan to meet their obligations under the FAMLI Act and its
implementing regulations.
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mplementing regulations with an approved private plan, it
must apply for private plan approval, pay the administrative fee described in
these rules, pay the maintenance fee described in these rules, and otherwise
comply with these rules regardless of how many other employers use or intend to
use the same private plan to meet their obligations under the FAMLI Act and its
implementing regulations.
4.
Private plans must not impede the ability of an employer, an employee, or a
private plan administrator to comply with the provisions of the FAMLI Act or its
implementing regulations.
5.
The earnings requirement necessary to be a “covered individual” pursuant to
C.R.S. § 8-13.3-503(3)(a)(I) is not “per-employer” and private plans may not deny
or otherwise limit benefits to which the covered individual would otherwise be
entitled. However, if the private plan administrator does not have verified wages
from other employers, the private plan administrator may determine a claimant’s
wage replacement amount based on the private plan employer’s wages, so long
as the employee is able to appeal the benefit decision to provide accurate wage
information for their other employment.
6.
Employers who are approved to provide FAMLI benefits under a self-insured plan
must establish and maintain a separate account for their localized Colorado
employees: (1) into which all localized employee contributions are deposited and
kept; and (2) from which all benefits for localized employees must be paid, and
from which private plan administrative costs may be paid. Employers may not
withdraw from the account except to pay benefits and private plan administrative
costs. Upon any voluntary or involuntary termination of a self-insured plan, the
employer must remit the remaining balance of the account to the Division.
7.
All private plans must provide for the confidentiality of employee information
related to FAMLI benefits, and such information must be kept separate from all
other employment records.
unt except to pay benefits and private plan administrative
costs. Upon any voluntary or involuntary termination of a self-insured plan, the
employer must remit the remaining balance of the account to the Division.
7.
All private plans must provide for the confidentiality of employee information
related to FAMLI benefits, and such information must be kept separate from all
other employment records.
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8.
By submitting an application for benefits to a private plan administrator, the
claimant consents to the private plan administrator sharing with the employer
limited information necessary for the employer to comply with federal or state tax
laws or tax regulations, or to coordinate FAMLI benefits with other benefits for
which the claimant is eligible, in accordance with the information-sharing
provisions of 7 CCR 1107-4, including the wage replacement amount and the
reason for leave. The employer shall not request, and the private plan
administrator shall not provide, information that is not absolutely necessary for
such tax law compliance or benefit coordination. An employer's request for
information not absolutely necessary for such purposes, or a private plan
administrator's provision of information not absolutely necessary for such
purposes, may constitute discrimination, retaliation, and/or interference in
violation of C.R.S. § 8-13.3-509. The employer must store and maintain the
confidentiality of such information in accordance with all applicable federal, state,
and local laws and regulations, and failure to do so may constitute discrimination,
retaliation, and/or interference in violation of C.R.S. § 8-13.3-509.
9.
All private plans must provide that an employee shall be provided, upon request
and free of charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the employee’s claim for benefits within seven
,
and local laws and regulations, and failure to do so may constitute discrimination,
retaliation, and/or interference in violation of C.R.S. § 8-13.3-509.
9.
All private plans must provide that an employee shall be provided, upon request
and free of charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the employee’s claim for benefits within seven
(7) days of the request. If the Division determines that an employee was not
granted access and copies in violation of this section, the Division may assess
upon the private plan administrator a fine of up to $250.00 per violation.
10.
With regard to forms that claimants and/or health care providers will be required
to complete in relation to a claim for benefits, all private plans shall either utilize
the forms provided by the Division, or utilize forms that are no more onerous than
the forms provided by the Division. If a private plan administrator makes changes
to an approved form, they may submit the revised form to the Division for review
and approval. If the Division determines that an employee had to, as a condition
to access benefits, use a form more onerous than the forms provided by the
Division, the Division may assess upon the private plan administrator a fine of up
to $500.00 per violation, except that the Division shall not assess a fine for a form
that it has approved.
11.
Private plans must determine whether an application for benefits is properly filed,
and must do so in a manner consistent with 7 CCR 1107-3 Section 3.6.9.
12.
In accordance with C.R.S. § 8-13.3-521(7), in addition to the initial administration
fee described in these rules, starting in 2025, an employer with an approved
private plan must pay the Division an annual maintenance fee to cover amounts
expended by the division for costs arising out of the administration of private
plans.
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th C.R.S. § 8-13.3-521(7), in addition to the initial administration
fee described in these rules, starting in 2025, an employer with an approved
private plan must pay the Division an annual maintenance fee to cover amounts
expended by the division for costs arising out of the administration of private
plans.
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A.
Maintenance fees will be due by December 31 of each year and will reflect
approximate costs incurred by the Division during the prior fiscal year
beginning July 1 and ending June 30. The Division may extend the
deadline to pay a maintenance fee for good cause.
B.
Approximate costs will equal the sum of:
1.
Midrange annual salaries of the positions tasked with the
administration and oversight of private plans, as set forth in the
State of Colorado Basic Pay Plan issued by the Department of
Personnel and Administration for that fiscal year; and;
2.
The cost of any contracts entered into by the FAMLI Division with
another entity for the administration and oversight of private plans.
C.
Maintenance fees shall only be due from employers who had private plan
coverage throughout the relevant fiscal year, and shall be calculated by
first dividing approximate costs by the number of such employers, and
then rounding that amount to the nearest dollar. No maintenance fee will
be due from an employer who did not have private plan coverage
throughout the entire relevant fiscal year.
D.
For 2025, the maintenance fee will be $142.00. Starting in 2026,
maintenance fees will be calculated and published on the Division’s
website by July 31.
E.
In no event shall the maintenance fee increase more than 10% from the
prior year’s maintenance fee.
F.
Employers may request a reconsideration of their maintenance fee within
forty-nine (49) days after its due date. That deadline may be extended by
an additional forty-nine (49) days for good cause. The outcome of a
maintenance fee reconsideration may be appealed pursuant to 7 CCR
1107-9
uly 31.
E.
In no event shall the maintenance fee increase more than 10% from the
prior year’s maintenance fee.
F.
Employers may request a reconsideration of their maintenance fee within
forty-nine (49) days after its due date. That deadline may be extended by
an additional forty-nine (49) days for good cause. The outcome of a
maintenance fee reconsideration may be appealed pursuant to 7 CCR
1107-9. A hearing officer shall only overturn a maintenance fee
assessment upon a finding that the employer did not have private plan
coverage for the entire fiscal year, or upon a finding that the Division
abused its discretion.
G.
Employers who are members of a professional employer organization
(“PEO”) certified pursuant to C.R.S. § 8-70-114 do not have to pay an
annual maintenance fee if the PEO has an approved private plan that
covers all the employer's Colorado employees. The certified PEO counts
as one employer and will be assessed a maintenance fee.
13.
Private plans must make reasonable efforts to make forms and communications
under these rules available in an individual’s primary language.
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14.
The internal reconsideration and appeals procedures under a private plan need
not be equivalent or better than those procedures under the state plan, so long
as the private plan provides for appeals to the Division and any court of
competent jurisdiction, in accordance with C.R.S. § 8-13.3-521(5). However, all
determinations under a private plan are appealable directly to the Division
pursuant to 7 CCR 1107-9, and a private plan may not require a claimant to go
through any internal review, reconsideration, or appeal before appealing a private
plan determination to the FAMLI Division.
15.
Private plans will not be reviewed or approved for any local government, or for
any individual electing coverage pursuant to C.R.S. § 8-13.3-514.
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plan are appealable directly to the Division
pursuant to 7 CCR 1107-9, and a private plan may not require a claimant to go
through any internal review, reconsideration, or appeal before appealing a private
plan determination to the FAMLI Division.
15.
Private plans will not be reviewed or approved for any local government, or for
any individual electing coverage pursuant to C.R.S. § 8-13.3-514.
16.
An insurer approved by the state shall send notification to the Division within
fourteen (14) days after any lapse in or end of coverage under the policy. The
notification shall include:
A.
The effective date of the lapse in or end of coverage;
B.
The cause of the lapse in or end of coverage;
C.
Whether the employer may reinstate the policy;
D.
If eligible for reinstatement, the time period during which the employer has
to reinstate; and
E.
If eligible for reinstatement, the requirements for reinstatement.
17.
An insurer approved by the state shall send notification to the Division within
three (3) business days after the employer is sent notification of reinstatement.
The reinstatement notification shall include:
A.
The effective date of the reinstatement;
B.
Whether there was a lapse in coverage; and
C.
If there was a lapse in coverage, the dates coverage lapsed.
5.4
Application Requirements and Effective Date of New Private Plans
1.
Private plans must be approved by the Division prior to implementation. Private
plans in the form of an insurance policy issued by an insurer approved by the
state must first be submitted to the Colorado Division of Insurance for approval.
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.4
Application Requirements and Effective Date of New Private Plans
1.
Private plans must be approved by the Division prior to implementation. Private
plans in the form of an insurance policy issued by an insurer approved by the
state must first be submitted to the Colorado Division of Insurance for approval.
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2.
To obtain approval of a private plan, an employer must first submit a complete
private plan application for private plan approval to the Division. Entities with
separate federal employer identification numbers (FEINs) must submit separate
applications and pay separate application fees, except that employers who are
members of a professional employer organization (“PEO”) certified pursuant to
C.R.S. § 8-70-114 do not have to pay an application fee if they are covered by
their PEO’s private plan and their PEO has paid an application fee. Applications
may be submitted at any time, and the Division will review complete private plan
applications as they are received.
3.
A complete private plan application for private plan approval must include:
A.
The employer’s federal employer identification number (“EIN”);
B.
The employer’s name;
C.
The employer’s business address;
D.
The employer’s mailing address;
E.
A designated contact person, with that person’s name and contact
information;
F.
A copy of the employer’s self-insured private plan, or if the private plan is
in the form of an insurance policy provided by an insurer approved by the
state, a copy of that insurance policy form;
G.
If the private plan is in the form of self-insurance, a surety bond, issued by
a surety company authorized to transact business in Colorado, in an
amount equal to one year of total premiums calculated pursuant to C.R.S.
§ 8-13.3-507, along with payroll documentation supporting the surety bond
calculation;
H
licy provided by an insurer approved by the
state, a copy of that insurance policy form;
G.
If the private plan is in the form of self-insurance, a surety bond, issued by
a surety company authorized to transact business in Colorado, in an
amount equal to one year of total premiums calculated pursuant to C.R.S.
§ 8-13.3-507, along with payroll documentation supporting the surety bond
calculation;
H.
If the private plan is in the form of self-insurance, attestation that the
employer has complied with the separate account requirements at Section
5.3.6 of these rules;
I.
An attestation, completed by the employer, that the employer
understands, and the private plan satisfies, the requirements set forth in
the FAMLI Act and its implementing regulations;
J.
An attestation, completed by the employer, that the forms used by the
employees and/or health care providers will be no more onerous than the
forms used by employees and/or health care providers under the state
plan;
K.
A copy of the posted notice required by Section 5.9.4 of these rules;
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L.
Other information as required on the application form; and
M.
An administration fee of:
1.
$500.00 for private plan applications received through 2024; and
2.
For private plan applications received in 2025 and later, the amount
determined by the Director pursuant to C.R.S. § 8-13.3-521(7), and
published on the Division’s website.
4.
Approved private plans must take effect no earlier than sixty days after the date
the Division receives a complete private plan application so that the Division has
sufficient time to review the application, and the employer has sufficient time to
provide notice to employees in accordance with Section 5.9 of these rules.
5.
The employer must submit to the Division any forms to be used by
employees and/or health care providers under the approved private
plan at least thirty (30) days prior to making them available to
employees for usage.
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hat the Division has
sufficient time to review the application, and the employer has sufficient time to
provide notice to employees in accordance with Section 5.9 of these rules.
5.
The employer must submit to the Division any forms to be used by
employees and/or health care providers under the approved private
plan at least thirty (30) days prior to making them available to
employees for usage.
6.
Employers remain liable to the FAMLI Division for premiums on
wages paid until the effective date of the approved private plan, and
remain entitled under C.R.S. § 8-13.3-507(5) to withhold the
employees’ share of premiums from wages paid until the effective
date of the approved private plan. Throughout the duration of an
approved private plan, employers may withhold premiums
deductions from employees in an amount not to exceed the amount
authorized by C.R.S. § 8-13.3-507(5), if such a deduction is
pursuant to the terms of the approved private plan.
7.
Employees remain eligible for benefits under the FAMLI Act until
the effective date of the approved private plan.
8.
Benefits awarded to an employee must be paid by the plan that
awarded the benefits for the full duration of the employee’s
approved FAMLI benefits claim, pursuant to 7 CCR 1107-4 Section
4.9.1.
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A.
In the event of an approved private plan failing to pay
benefits due to an insurance carrier’s insolvency, if the policy
is covered by an insurance guaranty association, the claims
will be paid by the insurance guaranty association pursuant
to their rules and procedures. If the policy is not covered by
a guaranty association, then the employer will become
responsible for paying all claims approved by the private
plan prior to the date of insolvency
pay
benefits due to an insurance carrier’s insolvency, if the policy
is covered by an insurance guaranty association, the claims
will be paid by the insurance guaranty association pursuant
to their rules and procedures. If the policy is not covered by
a guaranty association, then the employer will become
responsible for paying all claims approved by the private
plan prior to the date of insolvency. In either event, the
employer shall immediately notify the FAMLI Division of the
insolvency, the notice requirements under Section 5.14 of
these rules are waived, and the employer will be deemed
covered under the state system.
B.
If a self-insured employer fails to pay benefits as awarded
and private plan approval is withdrawn pursuant to Section
5.16 of these rules, the Division shall execute upon the
surety bond and use the proceeds and the remaining funds
in the separate account established pursuant to Section
5.3.6 of these rules to pay benefits due for claims arising
prior to the date of termination.
C.
If an employer fails to pay benefits as required by 5.4.8.A, or
if the surety bond and remaining funds are insufficient to pay
the benefits under 5.4.8.B, those claims shall be paid by the
FAMLI Division. The employer is indebted to the Division for
such amounts, and the Division may pursue all legal means
to collect such amounts from the employer.
5.5
Review of Private Plan Applications
1.
If the Division does not approve an application for a private plan, the Division
shall notify the employer in writing of any issues that must be addressed in order
for the private plan application to be approved.
2.
The employer may request to meet and confer with the Division to discuss the
issues and how they can be addressed, and the Division shall make a good faith
effort to schedule a prompt meeting with the employer at a convenient time and
in a convenient manner.
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for the private plan application to be approved.
2.
The employer may request to meet and confer with the Division to discuss the
issues and how they can be addressed, and the Division shall make a good faith
effort to schedule a prompt meeting with the employer at a convenient time and
in a convenient manner.
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3.
For applications for self-insured private plans received by the Division on or after
January 1, 2025, the employer must use the self-insurance private plan template
approved by the FAMLI Division and published on its website. If the Division
makes changes to the self-insured private plan template, it will deliver an
addendum to the employer with a self-insured private plan that shall function as
an approved amendment to the previously approved self-insured private plan. An
employer must incorporate the addendum into the self-insured private plan by the
effective date provided in the addendum. If an employer needs to incorporate
more than four (4) addendums to an approved self-insured private plan, the
employer shall submit an amended private plan using the self-insured template
approved by FAMLI, which will incorporate any previously approved addendums,
to the Division for approval at least thirty (30) days prior to the required effective
date of the restated self-insured private plan. Failure to amend a self-insured
private plan template by the effective date provided by the Division may result in
the involuntary withdrawal of private plan approval.
4.
The employer may submit another application for private plan approval after
sufficiently addressing any identified issues.
5.
No additional administrative fee will be assessed for an application received
within one year of the initial application for private plan approval.
6.
Each application is a separate application for purposes of determining the
effective date of an approved private plan.
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4.
The employer may submit another application for private plan approval after
sufficiently addressing any identified issues.
5.
No additional administrative fee will be assessed for an application received
within one year of the initial application for private plan approval.
6.
Each application is a separate application for purposes of determining the
effective date of an approved private plan.
7.
The Division may deny a private plan application based on a record of prior
noncompliance with federal or state laws or regulations by the legal entity, its
owners, or its officers, where that record of prior noncompliance gives rise to a
reasonable concern of future noncompliance with the FAMLI Act and its
implementing regulations.
8.
The outcome of a private plan application is subject to an appeal, in accordance
with 7 CCR 1107-9.
5.6
Surety Bond Requirement for Employer Self-Insured Private Plan
1.
The Division will only accept a surety bond issued by a surety company
authorized by the Colorado Insurance Commissioner to transact such business in
Colorado.
2.
The bond amount must be an amount equal to one year of total premiums
calculated pursuant to C.R.S. § 8-13.3-507.
3.
The bond amount must be based on four quarters of projected wages, as
represented by:
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A.
The previous four quarters of wages reported by the employer to the
Division, in accordance with 7 CCR 1107-3 Section 3.3.2; or
B.
If the employer has not reported wages to the Division for four quarters,
the previous four quarters of wages paid to its employees; or
C.
If none of the above is possible, a reasonable estimate of one year of
projected wages supported by documentation.
4.
The Division may disapprove a private plan if an employer fails to provide
documentation the Division deems necessary for purposes of calculating an
appropriate surety bond amount. This disapproval is a determination subject to
appeal pursuant to 7 CCR 1107-9.
5
ts employees; or
C.
If none of the above is possible, a reasonable estimate of one year of
projected wages supported by documentation.
4.
The Division may disapprove a private plan if an employer fails to provide
documentation the Division deems necessary for purposes of calculating an
appropriate surety bond amount. This disapproval is a determination subject to
appeal pursuant to 7 CCR 1107-9.
5.
If an employer has reason to believe that the amount calculated pursuant to
Section 5.6.3 of this rule does not accurately reflect its projection of the next year
of wages, the employer must notify the Division and provide an explanation as to
why, along with any supporting documentation.
6.
A surety bond shall be issued on a form prescribed by the Division.
7.
The bond must include a statement that the bonding company must give ninety
(90) days’ notice of its intent to terminate liability to both the principal and the
Division, except that if the bonding company is terminating liability because it is
issuing a replacement bond, it may do so without providing prior notice. In the
event of a replacement bond, the surety company and the employer must notify
the Division no later than fourteen (14) days after its effective date.
8.
The employer must maintain surety bond coverage for the duration of its
approved self-insured private plan.
9.
The Division will review the bond annually to ensure that the amount corresponds
with the wage projections as described in this rule. The employer must provide
the Division with any documentation necessary to review the bond amount. If the
Division determines that the bond amount must be increased, the employer must
do so to maintain private plan approval. If the Division determines that the bond
amount exceeds the projected wages as described in Section 5.6.3 of this rule,
the employer may reduce the bond amount to match such projected wages.
10
provide
the Division with any documentation necessary to review the bond amount. If the
Division determines that the bond amount must be increased, the employer must
do so to maintain private plan approval. If the Division determines that the bond
amount exceeds the projected wages as described in Section 5.6.3 of this rule,
the employer may reduce the bond amount to match such projected wages.
10.
The Division may execute on and collect the bond amount if the employer’s
private plan approval is terminated, voluntarily or involuntarily, pursuant to these
rules.
A.
The Division may execute on and collect the entire bond amount, less any
funds received from the employer within 30 days after the effective date of
the termination of the private plan approval or as agreed upon by the
employer and the Division.
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B.
Funds so received by the Division from the employer and/or the surety, as
well as funds received by the Division pursuant to Section 5.3.6 of these
rules, will be deposited into the fund, and if applicable, will be credited
toward the employer’s obligations under Section 5.17 of this rule, and will
not be refunded pursuant to 7 CCR 1107-1, Section 1.4.8.B.
5.7
Duration of Private Plan Approval; Renewal Requirements
1.
Unless otherwise authorized by the Division pursuant to these rules, private plan
approval expires after eight years from the date that the private plan went into
effect.
2.
Employers seeking renewal of their private plan approval must submit an
application for renewal at least sixty (60) days before the expiration of their
private plan approval. The Division will send to the employer’s email address an
expiration notice at least ninety (90) days before the expiration of the private
plan’s approval
r eight years from the date that the private plan went into
effect.
2.
Employers seeking renewal of their private plan approval must submit an
application for renewal at least sixty (60) days before the expiration of their
private plan approval. The Division will send to the employer’s email address an
expiration notice at least ninety (90) days before the expiration of the private
plan’s approval.
5.8
Partial Colorado Workforce Coverage Prohibited
If an employer meets its obligations under the FAMLI Act and its implementing
regulations with an approved private plan, it must cover all of the employer’s employees
localized in Colorado in accordance with 7 CCR 1107-1.
5.9
Notice to Employees of Private Plan Benefits and Administration
1.
No later than thirty (30) days before the effective date of an approved private
plan, an employer must deliver to each of its employees a written notice of its
election and approval by the Division to offer a private plan in lieu of participating
in the state plan. For an employee whose start date or Colorado transfer is later
than thirty (30) days before the effective date of an approved private plan, an
employer must deliver the written notice to the employee immediately upon hire
or transfer. Additionally, the employer must deliver the private plan notice to an
employee within five days after either learning of an employee experiencing an
event that triggers eligibility pursuant to C.R.S. § 8-13.3-504, or receiving from
the employee a request for leave under the Family and Medical Leave Act at 29
U.S.C. § 2601 et seq., absent extenuating circumstances.
2.
The written notice may be delivered to the individual employee electronically, in
person, or via mail.
3.
The written notice must include:
A.
The effective date of the approved private plan;
B.
A description of the private plan’s wage replacement benefits;
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§ 2601 et seq., absent extenuating circumstances.
2.
The written notice may be delivered to the individual employee electronically, in
person, or via mail.
3.
The written notice must include:
A.
The effective date of the approved private plan;
B.
A description of the private plan’s wage replacement benefits;
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C.
A description of the private plan’s leave and employment protection
benefits;
D.
A description of how employee eligibility is determined;
E.
A description of how any employee contributions are calculated and
collected;
F.
A description of how and when an employee may file a claim for benefits
under the approved private plan;
G.
A notification to the employee of the employee’s appeal rights pursuant to
the FAMLI Act, and if applicable, of the employee’s optional alternative to
appeal a benefits determination to the private plan administrator;
H.
Contact information for the FAMLI Division and the plan administrator; and
I.
A notification to the employee of the employee’s rights under C.R.S. § 8-
13.3-509.
4.
In addition to delivering the written notice to each of its employees localized in
Colorado, an employer must post a notice containing the same information.
A.
The notice must be posted in a conspicuous and accessible place in each
establishment where employees are employed.
B.
The notice must be in English, Spanish, and any language that is the first
language spoken by at least five percent of the employer’s Colorado
workforce.
C.
If the employer does not maintain a physical workplace, or an employee
works remotely, the employer may satisfy the posting requirement by
sending the notice via email or through a conspicuous posting in a web-
based or app-based platform that the employee regularly uses.
5.
If the Division determines that an employer has violated any part of Section 5.9 of
these rules, the Division may assess upon the employer a fine of up to $500.00.
sical workplace, or an employee
works remotely, the employer may satisfy the posting requirement by
sending the notice via email or through a conspicuous posting in a web-
based or app-based platform that the employee regularly uses.
5.
If the Division determines that an employer has violated any part of Section 5.9 of
these rules, the Division may assess upon the employer a fine of up to $500.00.
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5.10 Collection of Employee Contributions Authorized
Where an employer lawfully deducts premium contributions from an employee’s wages
pursuant to C.R.S. § 8-13.3-507(5) or the terms of an approved private plan, then for
the purposes of compliance with C.R.S. § 8-4-105, premium contributions are
considered wages paid for the benefit of the employee, and collecting such premium
contributions does not violate C.R.S. § 8-4-105(2). If an employer deducts premium
contributions from an employee’s wages, and subsequently receives a refund of
premiums paid from the private plan, the employer must distribute the refund
proportionately and in accordance with how it was collected. If an employee terminates
employment with the employer, any premiums previously deducted remain part of the
employer’s approved private plan.
5.11 Calculation of Benefits Under Private Plans
Private plans must provide a wage replacement rate for all family and medical leave
insurance benefits of at least the amount required by 7 CCR 1107-3 Section 3.5. Private
plan benefits are not subject to Colorado income tax.
5.12 Recordkeeping and Reporting Requirements; Division Access to Records
1.
A private plan administrator must keep and maintain documentation of the
following for a minimum of six years:
A.
Applications for benefits;
B.
Benefits paid, including payment dates and amounts;
C.
Adverse determinations of benefits applications;
D.
Internal appeals received;
E.
The outcome of internal appeals received; and
F
Recordkeeping and Reporting Requirements; Division Access to Records
1.
A private plan administrator must keep and maintain documentation of the
following for a minimum of six years:
A.
Applications for benefits;
B.
Benefits paid, including payment dates and amounts;
C.
Adverse determinations of benefits applications;
D.
Internal appeals received;
E.
The outcome of internal appeals received; and
F.
Documents, including wage data, containing the information upon which
benefits determinations were based.
2.
An employer must keep and maintain documentation of the following for a
minimum of six years:
A.
Records of any premium contributions it collected from employees.
B.
Wage records.
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3.
A private plan administrator must, on a quarterly basis, submit to the Division a
private plan administration summary of the previous calendar quarter. The
private plan administration summary must be submitted no later than the last day
of the month immediately following the end of the calendar quarter addressed by
the summary. After a private plan administrator has submitted timely quarterly
administration summaries for three years, the private plan administrator may,
unless otherwise directed by the Division, submit its private plan administration
summary annually, which will be due on January 30 of each year. Information
received by the Division in the private plan administration summary will be
aggregated so that the Division can comply with its reporting obligations at
C.R.S. § 8-13.3-519. The private plan administration summary must include
aggregate summaries of the following:
A.
Total number of benefits applications received;
B.
Total number of benefit applications approved, pending, denied, or closed.
C.
Total benefit amounts paid;
D.
Total number of employees covered under the private plan;
E.
The purposes for approved leave;
F
its reporting obligations at
C.R.S. § 8-13.3-519. The private plan administration summary must include
aggregate summaries of the following:
A.
Total number of benefits applications received;
B.
Total number of benefit applications approved, pending, denied, or closed.
C.
Total benefit amounts paid;
D.
Total number of employees covered under the private plan;
E.
The purposes for approved leave;
F.
The reported gender of individuals for whom leave was approved, and for
whom leave was denied in whole or in part;
G.
The average weekly wage of individuals for whom leave was approved;
H.
If leave was taken to care for a family member, the relationship of that
family member to the beneficiary;
I.
Total number of appeals received; and
J.
Total number of appeals affirmed, reversed, modified, or withdrawn.
4.
For private plan administrators who administer private plans for multiple
employers, the aggregate summaries included in the private plan administration
summaries may be aggregated across employers.
5.
Within twenty-eight (28) days of the Division’s written request, a private plan
administrator or an employer with an approved private plan shall provide any
documentation either is obligated to maintain pursuant to Section 5.12 of these
rules. If the employer or private plan administrator requests an extension and
provides good cause for the extension, the Division may extend the 28-day
deadline. If the employer or private plan administrator does not provide the
requested documentation by the deadline, the Division may withdraw its approval
of the private plan.
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er or private plan administrator requests an extension and
provides good cause for the extension, the Division may extend the 28-day
deadline. If the employer or private plan administrator does not provide the
requested documentation by the deadline, the Division may withdraw its approval
of the private plan.
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5.13 Modification of a Private Plan
1.
An employer shall notify the Division, in writing, of any material change to an
approved private plan at least sixty (60) days before the change is to take effect.
However, if an employer is changing from one approved private plan to another
approved insurance carrier’s private plan, the employer must notify the Division,
in writing, of the change at least thirty-five (35) days before the change is to take
effect. The notification shall include:
A.
A detailed explanation of all material changes; and
B.
For self-insured private plans, a statement describing how any material
changes do not reduce benefits or impose new requirements on covered
employees beyond what would be provided and required under the state
plan.
2.
The Division will review the material change to the approved private plan, and will
determine whether the material change impacts private plan approval. The
Division will make a good faith effort to confer with the employer regarding any
impact to continued private plan approval, and to notify the employer of its
determination within thirty (30) days of the employer’s notification to the Division.
In no event may an employer make a material change without first obtaining
Division approval and providing at least thirty (30) days’ notice to its employees.
3.
Material changes to an approved private plan include, but are not limited to:
A.
Changing from one private plan to another;
B.
Changing the private plan to reduce benefits or leave types;
C.
Changing the private plan to increase claims adjudication timeframes;
D
yer make a material change without first obtaining
Division approval and providing at least thirty (30) days’ notice to its employees.
3.
Material changes to an approved private plan include, but are not limited to:
A.
Changing from one private plan to another;
B.
Changing the private plan to reduce benefits or leave types;
C.
Changing the private plan to increase claims adjudication timeframes;
D.
Changing the private plan to increase benefits payment timeframes; or
E.
Changing the private plan to increase the information collected from
employees to apply for or receive benefits.
4.
Material changes to an approved private plan do not include:
A.
Updating the private plan benefits application form in a way that does not
make the form more onerous than the state’s benefits application form;
B.
Changing business or contact information;
C.
Correcting typographical errors;
D.
Increasing benefits or leave types; or
E.
Updating the private plan to align with regulatory changes.
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5.
A change to an approved private plan will not extend the duration of its approval.
6.
If the Division determines that an employer has not notified the Division of a
material change in accordance with Section 5.13 of these rules, the Division may
assess upon the employer a fine of up to $250.00. If the Division determines that
an employer has not notified its employees of a material change in accordance
with Section 5.13 of these rules, the Division may assess upon the employer a
fine of up to $100 per employee per day.
5.14 Voluntary Termination of an Approved Private Plan by an Employer
1.
Before terminating coverage under an approved private plan as part of a
transition to the state plan, an employer must provide at least thirty (30) days
advance written notice to its employees and to the Division. Coverage
termination as part of a transition from one private plan to another is governed by
Section 5.13 of this rule.
2
untary Termination of an Approved Private Plan by an Employer
1.
Before terminating coverage under an approved private plan as part of a
transition to the state plan, an employer must provide at least thirty (30) days
advance written notice to its employees and to the Division. Coverage
termination as part of a transition from one private plan to another is governed by
Section 5.13 of this rule.
2.
The Division will withdraw approval of an employer’s private plan, effective the
date coverage under the private plan was terminated.
3.
If the employer terminates coverage under an approved private plan without
providing thirty (30) days advance notice to its employees, the Division may
assess upon the employer a fine of up to $500.00 per employee who did not
receive timely advance notice. If the Division awards benefits to an employee
with a benefit start date occurring during the thirty days after their employer
delivers notice to the Division pursuant to Section 5.14.1 of these rules, the
Division may assess upon the employer separate fines of up to $500.00 per
employee who received such benefits.
5.15 Expiration of an Approved Private Plan
If an employer does not renew its private plan in accordance with Section 5.7 of these
rules, the employer will be deemed to have voluntarily terminated its private plan, and
will be subject to the requirements in Section 5.14 of these rules.
5.16 Involuntary Termination of a Private Plan by the Division
1.
The Division will withdraw approval for a private plan when the terms or
conditions of the plan have been violated. Causes for plan termination shall
include, but not be limited to, the following:
A.
Failure to pay benefits in the amount and duration required by the FAMLI
Act and its implementing regulations;
B.
Failure to pay benefits in the amount and duration required by the private
plan, where the private plan provides benefits in a greater amount or
duration than is required by the FAMLI Act and its implementing
regulations;
mination shall
include, but not be limited to, the following:
A.
Failure to pay benefits in the amount and duration required by the FAMLI
Act and its implementing regulations;
B.
Failure to pay benefits in the amount and duration required by the private
plan, where the private plan provides benefits in a greater amount or
duration than is required by the FAMLI Act and its implementing
regulations;
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C.
Failure to pay benefits within the timeframes and in the manner specified
by the FAMLI Act and its implementing regulations;
D.
Failure to maintain an adequate surety bond in accordance with the
FAMLI Act and its implementing regulations;
E.
Misuse of private plan money, including the use of private plan funds for
anything other than paying out and administering benefits, or transferring
private plan funds from an account established pursuant to Section 5.3.6
of these rules to any account not exclusively for holding private plan funds;
F.
Failure to submit reports or comply with other compliance requirements as
required by the FAMLI Act and/or its implementing regulations;
G.
Failure to pay the annual maintenance fee;
H.
Failure to maintain private plan coverage; or
I.
Failure to otherwise comply with the FAMLI Act and its implementing
regulations.
2.
The Division will conclude that the terms or conditions of the plan have been
violated, and therefore withdraw approval of the private plan, if the Division
determines that the employer or the private plan administrator has repeatedly
violated the private plan’s terms and/or the FAMLI Act and its implementing rules,
has willfully or recklessly violated the private plan’s terms and/or the FAMLI Act
or its implementing rules, or has otherwise violated the private plan’s terms
and/or the FAMLI Act or its implementing rules in such a way that indicates a
widespread compliance concern.
3
the private plan administrator has repeatedly
violated the private plan’s terms and/or the FAMLI Act and its implementing rules,
has willfully or recklessly violated the private plan’s terms and/or the FAMLI Act
or its implementing rules, or has otherwise violated the private plan’s terms
and/or the FAMLI Act or its implementing rules in such a way that indicates a
widespread compliance concern.
3.
If the Division withdraws approval of an employer’s private plan, the Division will
issue to the employer and the private plan administrator a Notice of Withdrawal
of Private Plan Approval. The employer may appeal that withdrawal to the
Division pursuant to 7 CCR 1107-9. If the employer does not appeal the
withdrawal, the effective date is the day following the opportunity for a good
cause extension to the appeal deadline specified by 7 CCR 1107-9, except that if
the Division withdraws approval because the employer failed to maintain private
plan coverage, the effective date is the date coverage ended. The Division will
stay the withdrawal of approval during an appeal unless the Division withdrew
approval because the employer failed to maintain private plan coverage.
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5.17 Employer Obligations After Termination of Private Plan Approval
1.
Within seven (7) days of the effective date of a voluntary or involuntary
termination of private plan approval, the employer must notify all Colorado
employees of the termination, notify all Colorado employees that they are under
the state plan as a result of the termination, and deliver to all Colorado
employees the information contained in the program notice described at C.R.S. §
8-13.3-511.
2
.
Within seven (7) days of the effective date of a voluntary or involuntary
termination of private plan approval, the employer must notify all Colorado
employees of the termination, notify all Colorado employees that they are under
the state plan as a result of the termination, and deliver to all Colorado
employees the information contained in the program notice described at C.R.S. §
8-13.3-511.
2.
If an employer’s workforce becomes covered by the state plan because the
employer’s private plan approval was voluntarily or involuntarily terminated, the
employer must remain covered by the state plan and pay premiums to the state
for a period of at least three (3) years and deliver to the Division all remaining
amounts in the account established pursuant to Section 5.3.6 of these rules.
3.
If the employer returns to coverage under an approved private plan before the
end of three (3) years, the employer must pay to the state the amount of
premiums it would have been required to remit pursuant to C.R.S. § 8-13.3-
507(5) through the remainder of the three-year period. The employer may
choose to either remit the remainder as a lump sum based on a projection
determined by the Division, or may continue to remit premiums based on actual
wage data on a quarterly basis through the remainder of the three-year period.
4.
If the Division determines that an employer has violated Section 5.17 of these
rules, the Division may assess upon the employer a fine of up to $100.00 per
employee per day.
5.18 Division Oversight of Private Plans
1.
The Division may, at any time at its sole discretion, initiate a review of a private
plan and its administration to determine whether the private plan and its
administration are in accordance with the FAMLI Act and its implementing
regulations.
2.
Upon initiation of a review and request by the Division, the private plan
administrator and the employer shall provide all information and documentation
necessary to conduct the review.
3.
The Division will ensure confidentiality of records.
4
nd its administration to determine whether the private plan and its
administration are in accordance with the FAMLI Act and its implementing
regulations.
2.
Upon initiation of a review and request by the Division, the private plan
administrator and the employer shall provide all information and documentation
necessary to conduct the review.
3.
The Division will ensure confidentiality of records.
4.
Information and documentation requested by the Division must be provided
within fourteen (14) days after the request. The Division may extend the deadline
where good cause for such an extension exists.
5.
Failure to provide information and documentation necessary for the Division’s
review of a private plan and its administration may result in the Division’s
withdrawal of the private plan’s approval, and may result in a fine of up to
$250.00 per employee whose information is requested, per day that it is late.
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6.
Upon determination that a private plan administrator is not administering private
plans in accordance with the FAMLI Act and its implementing regulations, the
Division may withdraw its approval of private plans administered by that private
plan administrator, and may deny approval of future private plans administered
by that private plan administrator. If the Division withdraws approval pursuant to
this rule, it will make a reasonable effort to do so in a way that ensures
employers can maintain consistent coverage for their employees. All withdrawals
of private plan approval may be appealed pursuant to 7 CCR 1107-9.
5.19 Appeals
1.
Claimants under an approved private plan may appeal any adverse
determination made by the private plan administrator pursuant to 7 CCR 1107-9,
including but not limited to:
A.
A private plan administrator’s failure to issue a determination within two
weeks of filing;
B.
A private plan’s adverse determination of a claim for benefits;
C
roval may be appealed pursuant to 7 CCR 1107-9.
5.19 Appeals
1.
Claimants under an approved private plan may appeal any adverse
determination made by the private plan administrator pursuant to 7 CCR 1107-9,
including but not limited to:
A.
A private plan administrator’s failure to issue a determination within two
weeks of filing;
B.
A private plan’s adverse determination of a claim for benefits;
C.
A private plan’s failure to pay the full claim it approved;
D.
A private plan’s closure of a claim based on its determination that the
claim was not properly filed in accordance with 7 CCR 1107-3 Section
3.6.9;
E.
A private plan’s determination that an employee is disqualified from
benefits due to its conclusion that the employee willfully made a false
statement or misrepresentation regarding a material fact, or willfully failed
to report a material fact, to obtain benefits;
F.
A private plan’s identification and/or collection of an overpayment; or
G.
A private plan’s failure to issue payments in accordance with C.R.S. § 8-
13.3-505(2).
2.
A claimant under an approved private plan may file an appeal with the Division,
or may choose to file an appeal with the private plan administrator if the private
plan allows for a discretionary internal appeal mechanism. Regardless of whether
there is an internal private plan appeal process, a claimant under an approved
private plan may choose to file an appeal directly to the FAMLI Division in
accordance with 7 CCR 1107-9.
3.
If a claimant chooses to file an appeal with the private plan administrator, the
claimant may appeal the outcome of that appeal to the Division in accordance
with 7 CCR 1107-9.
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aimant under an approved
private plan may choose to file an appeal directly to the FAMLI Division in
accordance with 7 CCR 1107-9.
3.
If a claimant chooses to file an appeal with the private plan administrator, the
claimant may appeal the outcome of that appeal to the Division in accordance
with 7 CCR 1107-9.
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4.
If a covered individual appeals a benefit determination under an approved private
plan, and the Division determines that the covered individual is entitled to
additional payment, the Division will notify the private plan administrator, and the
private plan administrator must pay the additional amount within the same time
frames the Division would have to pay additional amounts pursuant to 7 CCR
1107-9.
5.
The Division will specify the benefit amount due and when such additional
payments are due in its determination.
6.
If the Division overturns or modifies a benefits determination under an approved
private plan, and the private plan administrator seeks judicial review of the
Division’s decision, the private plan administrator must still pay the additional
amount within the timeframes above. However, if the Division’s determination is
overturned or modified by a court upon judicial review, the private plan
administrator may:
A.
Deduct any overpayment from an employee’s wages in accordance with
C.R.S. § 8-4-105, if the private plan administrator is the employee’s
employer;
B.
Enter into a repayment plan with the employee; or
C.
File suit against the employee in a court of competent jurisdiction to
recover the overpayment.
5.20 Fines
1.
If, upon appeal or judicial review, the Division or a court determines that the
private plan administrator owes additional payments to a covered individual, and
the private plan administrator fails to issue payment of the benefits by the date or
dates specified by the Division or the court in its determination, then the Division
may assess fines upon the private plan administrator
t.
5.20 Fines
1.
If, upon appeal or judicial review, the Division or a court determines that the
private plan administrator owes additional payments to a covered individual, and
the private plan administrator fails to issue payment of the benefits by the date or
dates specified by the Division or the court in its determination, then the Division
may assess fines upon the private plan administrator.
2.
Each day after the due date that additional payments owed by a private plan to
an individual claimant go unpaid constitutes a separate violation.
3.
The Division may assess fines as follows:
A.
For the first day of nonpayment after the due date, a fine of up to $100.00
per individual claimant;
B.
For the second day of nonpayment after the due date, a fine of up to
$200.00 per individual claimant;
C.
For the third day of nonpayment after the due date, a fine of up to $300.00
per individual claimant;
CODE OF COLORADO REGULATIONS
7 CCR 1107-5
Division of Family and Medical Leave Insurance
23
D.
For the fourth day of nonpayment after the due date, a fine of up to
$400.00 per individual claimant; and
E.
For the fifth day of nonpayment after the due date, and for every additional
day thereafter, separate fines of up to $500.00 per day per individual
claimant.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.