How to Appeal a Bad Survey in Colorado

Assisted living providers in Colorado provide an important service to residents and the families of those residents. The job can be difficult, but provides personal fulfilment sufficient to keep and attract new providers in the state. One of the difficulties faced by providers is when the Colorado Department of Public Health and Environment (“Department”) conducts a survey and concludes that the provider is not in compliance with the law and regulations. The Department takes their responsibilities for seniors seriously, and usually has the best of intentions. However, like other human beings, sometimes they simply get it wrong and an assisted living provider gets “tagged” unfairly.  

If the Department’s surveyors feel that there is a situation existing in an assisted living residence that does not comply with the regulations, they will categorize it as a “deficiency.” That deficiency will be further identified by level of harm according to Colorado Code of Regulations, 6 CCR 1011-1 Chapter 7 (“Chapter 7”), Section 3.11.

3.11 The level of the deficiency shall be based upon the number of sample residents affected and the level of harm, as follows:

Level A – isolated potential for harm for one or more residents.

Level B – a pattern of potential for harm for one or more residents.

Level C – isolated actual harm affecting one or more residents.

Level D – a pattern of actual harm affecting one or more residents.

Level E (Immediate Jeopardy) – actual or potential for serious injury or harm for one or more residents.  

Most deficiencies are relatively minor and may include things such as record keeping, unsecured cleaning supplies, or the lack of window screens. Any of the deficiency levels may be appealed.  

However, the Level E deficiency, Immediate Jeopardy, is most serious and often includes financial penalties and a restriction or condition on the provider’s right to have an assisted living license. The significant consequences of a Level E deficiency and disagreement with the Department’s findings lead many providers to challenge Immediate Jeopardy findings.  

Providers may opt to first challenge the deficiency through the Department’s Informal Dispute Resolution (“IDR”). You can read more about IDRs and how to handle them here. Providers are often unsatisfied with the IDR process because the Department seldom concludes that it was wrong. For this reason, some providers will bypass the IDR process and move directly to requesting an appeal to an administrative court. If a provider chooses to engage in the IDR process and is unsuccessful, an appeal can be requested after the negative IDR decision letter is received.  

How to Request an Appeal 

The Department’s survey findings can be appealed by submitting a simple written statement of the facts and the matters that the provider wants decided by the administrative court.[i] The request for appeal must be filed within 30 days of the Department’s written notice.[ii]

The request for an appeal does not need to be filed by an attorney, but using legal counsel is recommended to ensure that all rights are protected and the provider’s position is adequately set forth. The scope of the appeal request will govern what can be addressed in the appeal procedure, so it’s important to get it right.

Once the request for an appeal has been made, a hearing date will be set with the administrative court. The Colorado Office of Administrative Courts currently is setting hearings about 12 months or more in the future.

Prior to the hearing, both sides have an opportunity to engage in “discovery,” which can involve written questions, requests for production of documents, and depositions where parties or individuals can be called to give sworn testimony in advance of the actual court hearing. As more facts come to light, the provider and the Department have an opportunity to look at a situation more carefully to determine if the matter should be settled or if they want to present their cases to the court and let the judge decide.  

If the appeal proceeds to a hearing, the Department bears the burden of proving that the provider committed the deficiency. The provider must be prepared to defend its position with witnesses and documentary evidence. If the administrative law judge rules in favor of the Department, the finding is upheld and the conditions and fines stand. In this case, the provider can further appeal this finding to an actual judicial court. If the administrative law judge finds in favor of the provider, the finding of deficiency is overturned unless the Department chooses to appeal the matter further.  

Of course, this article is written for informational purposes only, and is not legal advice for your specific situation, but we hope it helps you understand your rights and legal options. Contact  your attorney or us if you would like to discuss how the appeal process might work for you.

[i] C.R.S. § 24-4-105(2)(c).

[ii] C.R.S. § 24-4-105(14)(II).