REGULATIONS CONCERNING PROGRAM INTEGRITY

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DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Family and Medical Leave Insurance

REGULATIONS CONCERNING PROGRAM INTEGRITY

7 CCR 1107-6

[Editor’s Notes follow the text of the rules at the end of this CCR Document.]

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6.1

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,

C.R.S. § 24-4-101 et seq. (the “APA”), and the Paid Family and Medical Leave Insurance Act,

C.R.S. § 8-13.3-501 through 524 (the “Act” or “FAMLI”).

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 program integrity.

3.

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.

6.2

Definitions and Clarifications

1.

Unless otherwise indicated, terms used here that are defined in the Act have the same definition

as they do under the Act.

2.

“Benefit Overpayment” means a payment in excess of the amount authorized by the Act and its

implementing regulations.

3.

“Claimant” has the same definition as 7 CCR 1107-3, Section 3.2.7.

4.

“Correct Address” has the same definition as 7 CCR 1107-8, Section 8.2.6.

5.

“Determination” has the same meaning as defined in 7 CCR 1107-9, Section 9.2.8.

6.

“Equity and Good Conscience” means fairness as applied to each individual case after

considering the totality of the circumstances. When determining whether an individual or entity

shall pay an amount owed to the Fund (e.g. benefit overpayment, fines or interest), the Division or

private plan administrator may consider the following factors to determine equity and good

conscience, including, but not limited to:

A

Conscience” means fairness as applied to each individual case after

considering the totality of the circumstances. When determining whether an individual or entity

shall pay an amount owed to the Fund (e.g. benefit overpayment, fines or interest), the Division or

private plan administrator may consider the following factors to determine equity and good

conscience, including, but not limited to:

A.

The individual’s financial condition required that the amount owed be spent on

reasonable and necessary living expenses;

B.

The individual’s household income is below 200% of the federal poverty income

guidelines;

C.

The individual or entity lacks the ability to pay the amount owed based on prior income

level, current income and assets, and future earnings potential;

Code of Colorado Regulations

Secretary of State

State of Colorado

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D.

Requiring repayment will cause extraordinary financial hardship by depriving the

individual of the ability to provide for basic necessities that cannot be deferred such as

food, shelter, clothing, utilities, and medical costs;

E.

The individual detrimentally changed their position in reliance on the receipt of the

overpaid benefits including, but not limited to, entering into a financial and/or contractual

obligation that they would not have entered except for the receipt of the overpaid

benefits;

F.

The individual relinquished a valuable right in reliance on the receipt of the overpaid

benefits, including the receipt of other governmental benefits for which they would have

been entitled except for the receipt of the overpaid benefits. Although the individual is not

required to apply for governmental benefits and be rejected from receiving them, they

may be required to prove eligibility for such benefits by establishing their economic

situation at the time family and medical leave insurance benefits were received as well as

the requirements for receiving said benefits;

G

entitled except for the receipt of the overpaid benefits. Although the individual is not

required to apply for governmental benefits and be rejected from receiving them, they

may be required to prove eligibility for such benefits by establishing their economic

situation at the time family and medical leave insurance benefits were received as well as

the requirements for receiving said benefits;

G.

The individual’s knowledge or lack of knowledge regarding an employer’s incorrect

reporting of wages; and/or

H.

The individual’s knowledge or lack of knowledge with regard to a provider who fails to

meet the definition of health care provider, or who has provided a diagnosis or treatment

outside of their licensed scope of practice, or has a license that has been suspended or

revoked at the time the provider completes documentation regarding the individual’s need

for family and medical leave.

7.

“Fees” means any additional charge by a private plan added to an outstanding amount owed.

8.

“Party” or “Parties” means a claimant, employee, employer, or individual electing coverage

involved in a proceeding.

9.

“Qualifying Condition” means a reason for leave described at C.R.S. § 8-13.3-504(2).

6.3

Benefits Overpayments

1.

A claimant who receives family and medical leave insurance benefits they are not entitled to

receive shall be liable for repayment of the amount overpaid, unless otherwise relieved pursuant

to section 6.3.7. Circumstances giving rise to a benefits overpayment include, but are not limited

to a(n):

A.

Division miscalculation that occurs without any fault from the claimant or is caused by a

claimant’s omission, willful misrepresentation, or fraud;

B

nsurance benefits they are not entitled to

receive shall be liable for repayment of the amount overpaid, unless otherwise relieved pursuant

to section 6.3.7. Circumstances giving rise to a benefits overpayment include, but are not limited

to a(n):

A.

Division miscalculation that occurs without any fault from the claimant or is caused by a

claimant’s omission, willful misrepresentation, or fraud;

B.

Determination by the Division that the claimant does not qualify for family and medical

leave insurance benefits because they are not localized in Colorado pursuant to the in-

state status provisions of 7 CCR 1107-1, are not a covered individual, do not have a

qualifying condition, or are disqualified from receiving family and medical leave insurance

benefits because of a willful false statement or misrepresentation pursuant to C.R.S. § 8-

13.3-513;

C.

Claimant’s failure to notify the Division of an event that causes benefit payments to

change pursuant to 7 CCR 1107-3, Section 3.10.1;

D.

Claimant who, during time designated as FAMLI leave, performs work for the employer

from which they are taking FAMLI leave;

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E.

Claimant who is receiving family and medical leave insurance benefits, continuous or

intermittent, during a period of unemployment, except as described in 7 CCR 1107-3

Section 3.4.1.A;

F.

Claimant receiving family and medical leave insurance benefits for an absence from work

that is caused by circumstances that would entitle the claimant to temporary indemnity

benefits under the Colorado Workers’ Compensation Act in violation of 7 CCR 1107-4,

Section 4.3;

G.

Claimant receiving family and medical leave insurance benefits during any week the

individual receives unemployment benefits for the same job pursuant to the Colorado

Employment Security Act in violation of 7 CCR 1107-4, Section 4.4;

H

umstances that would entitle the claimant to temporary indemnity

benefits under the Colorado Workers’ Compensation Act in violation of 7 CCR 1107-4,

Section 4.3;

G.

Claimant receiving family and medical leave insurance benefits during any week the

individual receives unemployment benefits for the same job pursuant to the Colorado

Employment Security Act in violation of 7 CCR 1107-4, Section 4.4;

H.

Claimant receiving family and medical leave insurance benefits when their family and

medical insurance leave benefits have been exhausted;

I.

Modification of reported wages that results in a recalculation of benefits; or

J.

Health care provider who fails to meet the definition of “health care provider” as defined

by C.R.S. § 8-13.3-503(13), has provided a diagnosis, treatment, or leave certification

outside of their licensed or certified scope of practice, or has a license or certification that

has been suspended or revoked at the time the provider completes documentation

regarding the individual’s need for family and medical leave.

2.

Benefit overpayments may be identified through any lawful means, including but not limited to

Division audits, Division investigations, or external tips.

3.

The Division will notify claimants of any determination of benefit overpayment by sending the

claimant a determination letter to the claimant’s correct address. If the claimant has provided an

email address, the Division shall send the determination via email, and such delivery via email will

satisfy the requirement to send the determination letter to the claimant’s correct address.

4.

The claimant may appeal a determination of benefit overpayment as detailed in 7 CCR 1107-9.

5.

Any outstanding benefit overpayment owed to the Fund by the claimant is subject to recovery

pursuant to 7 CCR 1107-8, Section 8.8.

6.

Any outstanding balance past due shall accrue interest pursuant to 7 CCR 1107-8, Section 8.9

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ement to send the determination letter to the claimant’s correct address.

4.

The claimant may appeal a determination of benefit overpayment as detailed in 7 CCR 1107-9.

5.

Any outstanding benefit overpayment owed to the Fund by the claimant is subject to recovery

pursuant to 7 CCR 1107-8, Section 8.8.

6.

Any outstanding balance past due shall accrue interest pursuant to 7 CCR 1107-8, Section 8.9

7.

At its discretion, the Division may waive, in whole or in part, any amount of benefit overpayment

owed to the Fund where such recovery would be against equity and good conscience, unless the

overpayment resulted from the individual’s willful misrepresentation or willful failure to disclose a

material fact to the Division. A request to waive an overpayment is not an appeal, and waiver

requests must be submitted through the benefits system. The Division’s determination of equity

and good conscience and its determination of whether and the degree to which to waive an

overpayment shall only be overturned upon a finding that the Division abused its discretion.

6.4

Premium Underpayments, Fines, and Interest.

1.

An employer or individual electing coverage shall be liable for a premium underpayment.

Circumstances giving rise to a premium underpayment include, but are not limited to a(n):

A.

Mistake in billing by the Division caused by a technical error;

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ts discretion.

6.4

Premium Underpayments, Fines, and Interest.

1.

An employer or individual electing coverage shall be liable for a premium underpayment.

Circumstances giving rise to a premium underpayment include, but are not limited to a(n):

A.

Mistake in billing by the Division caused by a technical error;

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B.

Employer who has incorrectly identified employees localized in Colorado, underreported

the number of employees they have, misclassified employees as non-employees, or

failed to register with FAMLI and pay premiums; or

C.

Individual electing coverage who has underreported their income or has failed to report

their income.

2.

A fine may be imposed for any violation, including a failure to undertake an action specifically

required by the Act and its implementing rules, or by engaging in any activity specifically

prohibited by the Act and its implementing rules.

3.

Premium underpayments are identified through any lawful means including Division audits,

investigations, and external tips.

4.

The Division will notify an individual electing coverage or employer of any determination of

premium underpayment or fine by sending a determination letter to the individual electing

coverage or employer’s correct address.

5.

The party may appeal a determination of premium underpayment or fine pursuant to 7 CCR

1107-9.

6.

Any outstanding premium underpayment fine or interest owed to the Fund by the party is subject

to recovery pursuant to 7 CCR 1107-8, Section 8.8.

7.

Any outstanding balance past due shall accrue interest pursuant to 7 CCR 1107-8, Section 8.9.

8.

At its discretion, the Division may waive, in whole or in part, any fine or interest owed to the Fund

where such recovery would be against equity and good conscience.

6.5

Private Plans and Benefit Overpayments

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d to the Fund by the party is subject

to recovery pursuant to 7 CCR 1107-8, Section 8.8.

7.

Any outstanding balance past due shall accrue interest pursuant to 7 CCR 1107-8, Section 8.9.

8.

At its discretion, the Division may waive, in whole or in part, any fine or interest owed to the Fund

where such recovery would be against equity and good conscience.

6.5

Private Plans and Benefit Overpayments

1.

A claimant who receives benefits under a private plan that they are not entitled to receive shall be

liable for repayment of the amount overpaid, unless otherwise relieved pursuant to this section.

Circumstances giving rise to a benefits overpayment include, but are not limited to a(n):

A.

Private plan miscalculation that occurs without any fault from the claimant or is caused by

a claimant’s omission, willful misrepresentation, or fraud;

B.

Determination by the private plan that the claimant does not qualify for benefits because

they are not localized in Colorado pursuant to the in-state status provisions of 7 CCR

1107-1, are not a covered individual, do not have a qualifying condition, or are

disqualified from receiving benefits because of a willful false statement or

misrepresentation pursuant to C.R.S. § 8-13.3-513;

C.

Claimant’s failure to notify the private plan of an event that causes benefit payments to

change pursuant to 7 CCR 1107-3, Section 3.10.1;

D.

Claimant who has not taken a leave of absence from the employment from which they

are receiving benefits;

E.

Claimant who is receiving benefits, continuous or intermittent, during a period of

unemployment, except as provided by 7 CCR 1107-3, Section 3.4.1.A;

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change pursuant to 7 CCR 1107-3, Section 3.10.1;

D.

Claimant who has not taken a leave of absence from the employment from which they

are receiving benefits;

E.

Claimant who is receiving benefits, continuous or intermittent, during a period of

unemployment, except as provided by 7 CCR 1107-3, Section 3.4.1.A;

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F.

Claimant receiving benefits for an absence from work that is caused by circumstances

that would entitle the claimant to temporary indemnity benefits under the Colorado

Workers’ Compensation Act in violation of 7 CCR 1107-4, Section 4.3;

G.

Claimant receiving benefits during any week the individual receives unemployment

benefits under the Colorado Employment Security Act for the same job in violation of 7

CCR 1107-4, Section 4.4;

H.

Claimant receiving family and medical leave insurance benefits when their family and

medical insurance leave benefits have been exhausted;

I.

Employer who incorrectly reports wages for the claimant, causing the claimant to receive

benefits in an amount greater than their actual wages would provide; or

J.

Health care provider who fails to meet the definition of “health care provider” as defined

by C.R.S. § 8-13.3-503(13), has provided a diagnosis or treatment outside of their

licensed scope of practice, or has a license that has been suspended or revoked at the

time the provider completes documentation regarding the claimant’s need for family and

medical leave.

2.

The private plan administrator shall notify the claimant of any determination of benefit

overpayment by sending a determination letter to the claimant’s correct address. If the claimant

has provided an email address, the private plan administrator shall send the determination via

email, and such delivery via email will satisfy the requirement to send the determination letter to

the claimant’s correct address

plan administrator shall notify the claimant of any determination of benefit

overpayment by sending a determination letter to the claimant’s correct address. If the claimant

has provided an email address, the private plan administrator shall send the determination via

email, and such delivery via email will satisfy the requirement to send the determination letter to

the claimant’s correct address. For determinations of benefit overpayments totaling $25 or more,

the private plan administrator shall additionally notify the Division by sending copies of such

determination letters to the Division’s correct address in accordance with the private plan

administrator’s reporting schedule as described in 7 CCR 1107-5, Section 5.12.3. If the Division

determines that a private plan administrator did not notify the Division of an overpayment in

accordance with these rules, the Division may assess upon the private plan administrator a fine of

up to $50.00.

3.

The claimant may appeal a determination of benefit overpayment by a private plan as detailed in

7 CCR 1107-9.

4.

Any outstanding benefit overpayment owed to the private plan by the claimant is subject to

recovery by any legal means available to the private plan.

5.

A private plan shall exercise its discretion to waive, in whole or in part, any amount of benefit

overpayment owed where recovery would be against equity and good conscience.

6.

Any outstanding benefit overpayment owed to the private plan is subject to interest pursuant to

C.R.S. § 5-12-101.

7.

A private plan shall not subject an employee to any additional fees in addition to any outstanding

benefit overpayment amounts owed.

6.6.

Language Accessibility

The Division will make forms and communications under this rule available in English and Spanish. If an

individual’s primary language is neither English nor Spanish, the Division will make a reasonable attempt

to accommodate that individual’s language needs, subject to the Division’s sole discretion based on

available resources.

tanding

benefit overpayment amounts owed.

6.6.

Language Accessibility

The Division will make forms and communications under this rule available in English and Spanish. If an

individual’s primary language is neither English nor Spanish, the Division will make a reasonable attempt

to accommodate that individual’s language needs, subject to the Division’s sole discretion based on

available resources.

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6.7

Subrogation

The Division has no subrogation rights and will not attempt to exercise subrogation rights absent express

authority to do so in statute or in rule.