REGULATIONS CONCERNING APPEALS

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DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Family and Medical Leave Insurance

REGULATIONS CONCERNING APPEALS

7 CCR 1107-9

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

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9.1

Statement of Authority, Purpose, and Incorporation by Reference

1.

This regulation is adopted pursuant to the authority in section C.R.S. § 8-13.3-501 et seq., and is

intended to be consistent with the requirements of the State Administrative Procedures Act,

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

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

2.

The general purpose of these rules is to exercise authority of the Colorado Department of Labor

and Employment’s FAMLI Division (the “Division”) to enforce and implement the Paid Family and

Medical Leave Insurance Act (C.R.S. § 8-13.3-501 et seq.) with regard to administrative

determinations and hearing appeals.

3.

If any part of these rules is held invalid, the remainder shall remain valid, and if any part is held

not wholly invalid, but in need of narrowing, it will be retained in narrowed form.

9.2

Definitions

1.

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

definition as they do under the FAMLI Act.

2.

“Administrative Decision” means a written decision made by the Division’s administrative staff

other than the hearings officers.

3.

“Appeal” means a written statement challenging any part of a determination and submitted to the

Appeals Unit for review by a FAMLI hearing officer after internal review has occurred, if required

by statute or State regulation.

4.

“Appellant” means the party making the request for a FAMLI hearing officer to review a

determination or reconsideration, as those terms are defined in this Rule.

5.

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

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d submitted to the

Appeals Unit for review by a FAMLI hearing officer after internal review has occurred, if required

by statute or State regulation.

4.

“Appellant” means the party making the request for a FAMLI hearing officer to review a

determination or reconsideration, as those terms are defined in this Rule.

5.

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

6.

“Claimant” means a person who has filed a FAMLI Claim, regardless of whether the person is a

covered individual pursuant to C.R.S. § 8-13.3-503(3). If that person has a “designated

representative,” as defined in 7 CCR 1107-3, Section 3.2.10, the designated representative is

subject to the same deadlines and obligations as the claimant with regard to these regulations.

7.

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

Code of Colorado Regulations

Secretary of State

State of Colorado

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8.

“Determination” means an administrative decision or a private plan decision that is designated as

a “determination” or is a written decision that adversely affects the rights of parties if it, by

example only, (1) explicitly or effectively approves or denies all or part of a FAMLI Claim, or

changes the status of a FAMLI premiums account, (2) imposes fines, fees, penalties, or any other

monetary liability, (3) identifies an overpayment or requires repayment of benefits, or denies a

request to waive an overpayment, (4) awards damages, or other remedies, (5) denies or grants

all or part of the relief requested in an accepted grievance, investigation, or complaint, or (6)

withdraws the approval of a private plan or finds that a private plan committed a violation of the

FAMLI Act or its implementing regulations. “Determination” includes a Division assessment of

premiums

denies a

request to waive an overpayment, (4) awards damages, or other remedies, (5) denies or grants

all or part of the relief requested in an accepted grievance, investigation, or complaint, or (6)

withdraws the approval of a private plan or finds that a private plan committed a violation of the

FAMLI Act or its implementing regulations. “Determination” includes a Division assessment of

premiums. “Determination” does not include a Division notice that only informs a claimant or

applicant that an application is incomplete or requests additional information.

9.

“Division” means the Paid Family and Medical Leave Insurance Division of the Department of

Labor and Employment created pursuant to C.R.S. § 8-13.3-508.

10.

“Documents” means any designated documents or electronically stored information — including

writings, drawings, graphs, charts, photographs, sound recordings, images, computer

screenshots, and other data or data compilations — stored in any medium from which information

can be obtained either directly, or any designated tangible things.

11.

“FAMLI Appeals Unit” or “Appeals Unit” means the work unit presently within the Policy and

Appeals Branch of the FAMLI Division, authorized to resolve appeals of determinations and

reconsiderations.

12.

“FAMLI Claim” means a claim for “benefits” and “paid family and medical leave” as those terms

are defined under the FAMLI Act, C.R.S. § 8-13.3-501 et seq.

13.

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

14.

“Hearing officer” includes an administrative law judge within the Appeals Unit.

15.

“Parties of record” means the appellant, the Division, parties listed on a notice of hearing, and any

person added as a party by a hearing officer after a notice of hearing is issued.

16.

“Party” means a person explicitly identified as a “party” in these rules or who has a right or a

legally cognizable interest potentially affected by the outcome of an appeal

law judge within the Appeals Unit.

15.

“Parties of record” means the appellant, the Division, parties listed on a notice of hearing, and any

person added as a party by a hearing officer after a notice of hearing is issued.

16.

“Party” means a person explicitly identified as a “party” in these rules or who has a right or a

legally cognizable interest potentially affected by the outcome of an appeal. The Division is a

party to any appeal of Division determinations filed with the Appeals Unit, and more than one

person may attend appeal proceedings as “the Division.” A “private plan administrator,” as

defined in 7 CCR 1107-5, is a party to any appeal involving a private plan.

17.

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

18.

“Reconsideration” is a decision that replaces a prior Division-issued determination following an

internal review process.

9.3

Filing Appeals of Determinations

1.

Any party adversely affected by a determination may appeal it to the Appeals Unit. Where

required by statute or State regulation, a party must request a reconsideration by the Division

before filing an appeal.

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2.

The Division does not have jurisdiction over any matter that has been adjudicated or is currently

being adjudicated by the court system or by another government administrative body having

jurisdiction over such matter. If a party has filed a civil action in a court of competent jurisdiction

pertaining to the same subject matter as a determination previously issued by the Division, the

Appeals Unit will dismiss the appeal of that determination.

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matter that has been adjudicated or is currently

being adjudicated by the court system or by another government administrative body having

jurisdiction over such matter. If a party has filed a civil action in a court of competent jurisdiction

pertaining to the same subject matter as a determination previously issued by the Division, the

Appeals Unit will dismiss the appeal of that determination.

3.

An appeal is procedurally valid only if it: (a) is timely filed with the Appeals Unit; (b) includes a

copy of the determination or reconsideration at issue or sufficiently identifies the determination or

reconsideration appealed and the date of issuance; and (c) has been signed or electronically

verified by the party or the party's authorized representative.

4.

The Appeals Unit will only consider appeals filed within forty-nine (49) days of the date the

Division issued the determination or reconsideration in question unless an extension of time is

granted consistent with Rule 9.3.7.

5.

A document is considered “filed” with the Appeals Unit when the appeal is properly sent by U.S.

first class mail or via an Appeals Unit-approved electronic filing system. Any appeal to the

Appeals Unit sent after 11:59 p.m. (Mountain Time Zone) is considered filed the next business

day.

6.

An appeal to the Appeals Unit is considered “signed,” or to have a “signature,” if it has either an

ink signature, a scanned signature, an electronically drawn or generated signature, a unique mark

belonging to a specific person, a typed name entered by the party or authorized representative in

the signature area, or a completed electronic attestation.

7.

Unless otherwise specified, “day” means calendar day. Deadlines in this rule may be extended up

to a maximum of forty-nine (49) days for good cause. If a deadline falls on a weekend or State

holiday, the deadline shall become the next business day.

9.4

Preliminary Issues for Filed Appeals

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d by the party or authorized representative in

the signature area, or a completed electronic attestation.

7.

Unless otherwise specified, “day” means calendar day. Deadlines in this rule may be extended up

to a maximum of forty-nine (49) days for good cause. If a deadline falls on a weekend or State

holiday, the deadline shall become the next business day.

9.4

Preliminary Issues for Filed Appeals

1.

Upon receiving an appeal, the Appeals Unit will determine as soon as practicable whether the

appeal meets the requirements for a procedurally valid appeal. If the appeal is not procedurally

valid, including if the appeal is untimely, the Appeals Unit will send a notice of the procedural

deficiency and an order to show cause providing the appellant seven (7) days to respond. The

Appeals Unit can take any action it deems appropriate to address the deficiency, including

dismissal of an untimely appeal. For good cause, the Appeals Unit may grant an extension of

time not exceeding fourteen (14) days for a response to the notice of deficiency.

2.

Once an appeal is determined to be procedurally valid, the Appeals Unit will send a notice to the

appellant and the Division that the appeal has been accepted. The notice of acceptance will also

be sent to any person that has received a notice of a determination or claim that is the subject of

an appeal. The Appeals Unit will assign a hearing officer who will oversee the manner in which

the appeal will be handled, including scheduling and sending a notice of any necessary

proceedings. A hearing, if necessary, will be scheduled to occur within thirty-five (35) days after

an appeal is accepted as procedurally valid unless an extension of time is granted consistent with

Rule 9.3.7. The filing of an appeal will not suspend or terminate a FAMLI Claim award unless and

until a hearing officer modifies or overturns a determination at issue in an appeal.

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n thirty-five (35) days after

an appeal is accepted as procedurally valid unless an extension of time is granted consistent with

Rule 9.3.7. The filing of an appeal will not suspend or terminate a FAMLI Claim award unless and

until a hearing officer modifies or overturns a determination at issue in an appeal.

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3.

Upon a request by a party of record or the hearing officer’s own initiative, the hearing officer may

convene a prehearing conference to discuss the issues on appeal, questions related to party

status, the evidence to be presented, requests for language interpretation or other reasonable

accommodations, and any other relevant matters that may simplify the proceedings, including

resolving issues without a hearing if the material facts are undisputed. Genuine disputes of any

material fact must be resolved at an evidentiary hearing or by stipulation of all the parties of

record.

4.

Motions to disqualify a hearing officer must be made and addressed at the earliest opportunity

consistent with the provisions of C.R.S. § 24-4-105(3), including the requirement of a good faith

affidavit explaining the alleged disqualifying reasons. An unreasonable delay in requesting a

disqualification can be considered a waiver of any objection to the assignment of an appeal to a

hearing officer. Previous adverse rulings will not be considered as a valid basis for

disqualification. A hearing officer may recuse themselves in a manner consistent with C.R.S. §

24-4-105(3).

9.5

Discovery, Subpoenas, and Evidence for Hearings

1.

Within seven (7) days after the parties have been notified that an appeal has been accepted and

assigned to a hearing officer for review, the Division or private plan shall file with the Appeals Unit

an initial disclosure of information and/or documents supporting the determination at issue unless

such evidence cannot be sent to a party consistent with C.R.S. § 8-13.3-516 and 7 CCR 1107-3,

Section 3.8.10

seven (7) days after the parties have been notified that an appeal has been accepted and

assigned to a hearing officer for review, the Division or private plan shall file with the Appeals Unit

an initial disclosure of information and/or documents supporting the determination at issue unless

such evidence cannot be sent to a party consistent with C.R.S. § 8-13.3-516 and 7 CCR 1107-3,

Section 3.8.10. Failure to timely provide such disclosure may result in the hearing officer taking

remedial action under Rule 9.6.1. Confidential documents and information shall not lose any

protections from disclosure solely because an appeal was filed. The hearing officer may take any

action the hearing officer deems necessary to ensure confidentiality consistent with C.R.S. § 8-

13.3-516 and 7 CCR 1107-3.

2.

Evidence to be presented at a hearing must be submitted to the hearing officer and all other

parties of record at least ten (10) days before the hearing begins or as otherwise directed by the

hearing officer.

3.

Whenever a party files any other documents with the Appeals Unit, the party must also provide

the documents simultaneously to all parties of record. Failure to timely provide documents to all

other parties of record may be grounds for the hearing officer to limit issues or the presentation of

evidence or both as determined by the hearing officer’s sound discretion in the totality of

circumstances. Only parties of record and their authorized representatives shall have the right to

access documents submitted for that appeal, subject to the confidentiality requirements

referenced in Rule 9.5.1. Parties are responsible to provide relevant documents to their own

witnesses.

4.

No party may seek discovery, including an order for production of documents or evidence from a

party opponent, without approval from the hearing officer and only upon a clear showing that the

discovery is appropriate and necessary

d for that appeal, subject to the confidentiality requirements

referenced in Rule 9.5.1. Parties are responsible to provide relevant documents to their own

witnesses.

4.

No party may seek discovery, including an order for production of documents or evidence from a

party opponent, without approval from the hearing officer and only upon a clear showing that the

discovery is appropriate and necessary. To establish a clear showing, the party seeking discovery

must (1) present sufficient evidence of a legitimate dispute of a material fact and (2) clearly

articulate the need for and appropriateness of the requested discovery to resolve the factual

dispute.

5.

The hearing officer shall have the power to issue, on the request of a party, subpoenas to compel

the attendance of witnesses or the production of documents deemed appropriate and necessary

to resolve the pending appeal. The requesting party is responsible for service of process served

by a non-interested party and subject to the requirements of C.R.C.P. Rule 45.

6.

If a party or witness fails to obey a subpoena issued by the hearing officer, a party may apply to

any district court of this state to order compliance with the subpoena. The court may exercise its

power to issue a contempt citation to a person who fails to obey the order.

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9.6

Hearings

1.

The hearing officer shall have the power and authority to schedule, preside at, conduct hearings,

and ensure the appeal process is fair to all parties on a case-by-case basis. Hearings will be

conducted virtually with internet and telephone access

on to a person who fails to obey the order.

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9.6

Hearings

1.

The hearing officer shall have the power and authority to schedule, preside at, conduct hearings,

and ensure the appeal process is fair to all parties on a case-by-case basis. Hearings will be

conducted virtually with internet and telephone access. The hearing officer has the power to

administer oaths and affirmations, take depositions, certify to official acts, issue procedural

orders, preclude or limit evidence or legal arguments as a reasonable remedy or sanction for a

party’s willful non-compliance, and to take any other reasonable steps the hearing officer deems

necessary to resolve the pending appeal and control the hearing.

2.

The hearing officer shall not communicate with a party unless all parties are present or

simultaneously receive the hearing officer’s verbal or written communication. If such a

communication occurs, the hearing officer shall immediately disclose it to all parties.

3.

Hearings shall be conducted informally with as few technical requirements as possible. Only

parties of record to the appeal, and authorized representatives, may participate in hearings and

other appeal proceedings, and present evidence, including calling witnesses. The hearing officer

shall control the evidence taken during a hearing in a manner consistent with the due process

rights of all the parties and to provide a fair hearing.

4.

A hearing officer may make a finding of fact based on hearsay evidence only if it is reliable,

trustworthy, and probative. When deciding whether to accept hearsay as evidence, the hearing

officer may consider some or all of the following non-exclusive factors:

A.

Whether the statement was written and signed;

B.

Whether the statement was sworn to by the declarant;

C.

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

D.

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

E

When deciding whether to accept hearsay as evidence, the hearing

officer may consider some or all of the following non-exclusive factors:

A.

Whether the statement was written and signed;

B.

Whether the statement was sworn to by the declarant;

C.

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

D.

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

E.

Whether the declarant is credible;

F.

Whether there is corroboration for the hearsay statement;

G.

Whether the case turns on the credibility of the witnesses;

H.

Whether the party relying on the hearsay offers an adequate explanation for the failure to

call the declarant to testify; and

I.

Whether the party against whom the hearsay is used had access to the statements prior

to the hearing or the opportunity to subpoena the declarant.

5.

The hearing officer must preside impartially over administrative proceedings and hearings. The

hearing officer may provide limited procedural guidance to parties so long as the hearing officer

does not become an advocate for any of the parties.

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6.

Parties of record are entitled to at least fourteen (14) days advance notice of any hearing where

parties will offer witness testimony and/or documentary evidence (an “evidentiary hearing”), and

advance notice of the issues that may be considered at an evidentiary hearing according to the

schedule ordered by the hearing officer. In setting an evidentiary hearing date, the hearing officer

shall ensure that the parties of record have had reasonably sufficient opportunity to submit

exhibits and prepare for hearing. Upon mutual agreement of all the parties, the hearing officer can

set an evidentiary hearing to occur with less than fourteen (14) days notice

iary hearing according to the

schedule ordered by the hearing officer. In setting an evidentiary hearing date, the hearing officer

shall ensure that the parties of record have had reasonably sufficient opportunity to submit

exhibits and prepare for hearing. Upon mutual agreement of all the parties, the hearing officer can

set an evidentiary hearing to occur with less than fourteen (14) days notice. The hearing officer

shall not permit a party of record to present evidence on issues at a hearing that have not been

disclosed to all other parties of record before the hearing except to prevent obvious injustice. The

hearing officer has reasonable discretion to control the administrative proceedings and ensure

that the parties of record receive a fair hearing, including postponing hearings and granting

additional time to the parties of record where appropriate.

7.

Only the hearing officer is authorized to record appeal proceedings, and that recording shall be

the official recording of the proceeding. A transcription of the recording may also be made by the

Appeals Unit if the hearing officer’s decision is appealed to the District Court. All testimony at a

hearing or other proceeding must be recorded by the Appeals Unit and provided to a party upon

the party’s request.

9.7

Appeal Decisions and Burdens of Proof

1.

After conducting appeal proceedings as necessary, the hearing officer shall decide each

relevant issue properly raised during the proceedings and necessary to resolve the

appeal. The hearing officer shall issue a written decision based solely on the evidence

presented during the hearing and include findings of fact, conclusions of law, and an

order. In deciding disputed issues of fact, the hearing officer shall not give deference to

the Division’s factual determinations except where otherwise provided in rule

ised during the proceedings and necessary to resolve the

appeal. The hearing officer shall issue a written decision based solely on the evidence

presented during the hearing and include findings of fact, conclusions of law, and an

order. In deciding disputed issues of fact, the hearing officer shall not give deference to

the Division’s factual determinations except where otherwise provided in rule. In deciding

disputed issues of law, the hearing officer shall adhere to the plain language of both the

Division’s regulations and the Division’s interpretations of the FAMLI Act and its

implementing regulations that it has published on its website as a formal interpretation or

has adopted as a statement of basis and purpose for a regulation in accordance with the

Colorado Administrative Procedures Act. The hearing officer shall not conclude that a

rule adopted by the Division is outside of the Division’s statutory or constitutional

authority.

2.

Unless stated otherwise in rule, the burden of proof before the Appeals Unit is “by a

preponderance of the evidence.”

A.

The burden of proof rests with:

1.

The party seeking to overturn or change a Division or private plan

decision on a FAMLI claim award, or

2.

The party seeking damages, the imposition of a fine, disqualification,

penalty, fee or interest, or

3.

The party seeking any other relief.

B.

Where the Division proves the grounds for imposing monetary fines, penalties, or

fees on a party, the amount of such fines, penalties, or fees shall be overturned

or modified only if the party proves that the Division abused its discretion.

C.

Determinations resulting from the Division’s discretion in accordance with the

FAMLI Act and its implementing regulations shall be overturned or modified only

if the party proves that the Division abused its discretion.

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verturned

or modified only if the party proves that the Division abused its discretion.

C.

Determinations resulting from the Division’s discretion in accordance with the

FAMLI Act and its implementing regulations shall be overturned or modified only

if the party proves that the Division abused its discretion.

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3.

The hearing officer’s decision shall be made as soon as practicable after a hearing and

constitutes a final agency action pursuant to C.R.S. § 24-4-106. The decision shall be

binding on the Division unless it is withdrawn by a hearing officer, postponed pursuant to

C.R.S. § 24-4-106(5), overturned by a court, or made obsolete by a statute or rule

amendment. The Appeals Unit shall promptly serve a copy of the hearing officer’s

decision to each party of record.

4.

The hearing officer will issue written decisions in compliance with C.R.S. § 8-13.3-516

and will not disclose protected health information, the reason for leave, and wage

replacement benefit amounts beyond the information necessarily and appropriately

disclosed to the parties during an appeal proceeding.

5.

Any party of record in the administrative proceeding may appeal the hearing officer’s

decision only by commencing an action for judicial review in a district court of competent

jurisdiction within thirty-five (35) days after the date the decision was served to the party.

Judicial review is limited to appeal briefs and the record designated on appeal.

6.

If the Division or a court reverses or modifies a denial of a FAMLI claim, the Division or

private plan will pay the benefits as soon as practicable but no later than five (5) business

days after the order awarding benefits.

7.

A hearing officer, on their own initiative or the motion of a party, may reconsider a

decision within fourteen (14) days of issuance when it appears that a clear procedural or

substantive error has been made or that obvious injustice would result

the Division or

private plan will pay the benefits as soon as practicable but no later than five (5) business

days after the order awarding benefits.

7.

A hearing officer, on their own initiative or the motion of a party, may reconsider a

decision within fourteen (14) days of issuance when it appears that a clear procedural or

substantive error has been made or that obvious injustice would result.

9.8

Withdrawal and Dismissal of Appeals

1.

If the party that filed the appeal does not participate in the appeal proceedings, the appeal may

be dismissed if the hearing officers deems the appeal abandoned.

2.

The appellant may request to withdraw their appeal at any time, and such request will be granted

if no party files a meritorious objection. If the appellant withdraws their appeal, they may not

appeal the determination again unless the appellant demonstrates that denying the right to

appeal will result in an obvious injustice in light of the totality of circumstances. If the appellant

withdraws their appeal during the hearing, the hearing officer shall inform the appellant that

withdrawal of their appeal will render the determination final.