7 Colo. Code Regs. § 1101-2-12.1

Current through Register Vol. 47, No. 24, December 25, 2024

Section 7 CCR 1101-2-12.1 - DETERMINATION OF GOOD CAUSE

12.1.1Statutory References: 8-73-107 (1)(h), 8-73-108 (5)(e)(XVIII)(XIX), 8-74-102, 8-74-106, 8-76-110 (2)(g), 8-76-110 (4)(e), 8-76-113, and 8-79-104 (1)(d), C.R.S.

12.1.2Purpose. The purpose of this part XII of the regulations is to provide procedures and substantive guidelines for the determination of good cause only when a particular section of the act or regulations other than this part XII of the regulations specifically permits an untimely action or excuses the failure to act as required for good cause shown.

12.1.3 Procedure.

.1 Whenever an interested party files an untimely appeal from a deputy's decision, a rebuttable presumption of good cause shall be established and a hearing shall be scheduled unless the appeal was received more than 180 days beyond the expiration of the timely filing period. The notice of hearing shall contain a statement indicating that the appeal was filed beyond the expiration of the timely filing period and that the nonappealing party may object to the hearing being granted at the time of the new hearing. If the nonappealing party fails at the time of the hearing to object to the hearing proceeding, that party waives the opportunity to object to the hearing going forward. If the nonappealing party objects at the time of the hearing to the matter being scheduled, the hearing officer shall determine whether good cause has been shown, pursuant to section 12.1.8 , for permitting the untimely appeal. If the hearing officer determines that good cause has been shown for permitting the untimely appeal, the hearing shall proceed. If the hearing officer determines that good cause has not been shown for permitting the untimely appeal, the appeal shall be dismissed.

.2 In the event an interested party files an untimely appeal from a deputy's decision or makes a request for a new hearing and the appeal or hearing request is received more than 180 days beyond the expiration of the timely filing period, good cause may not be established, a hearing shall not be scheduled, the appeal shall be dismissed, and the deputy's decision shall become final.

.3 Whenever an interested party files an untimely appeal from a hearing officer's decision, or fails to participate as directed in a hearing held on an appeal from a deputy's decision and has filed a request for a new hearing, the panel shall determine if good cause has been shown, pursuant to section 12.1.8 , for permitting the untimely appeal or excusing the failure to participate in the hearing as directed. The panel shall make a determination of good cause only if the untimely appeal or request for new hearing contains a statement of the reasons for which the party failed to act in a timely manner or if information within the appeal file supports a determination of good cause. If the party's untimely appeal or request for a new hearing does not establish good cause, the panel may request an explanation in writing, by postal mail, by approved electronic means, or by telephone. The party shall respond to any such request within ten days.

.4 Whenever an appeal from a deputy's decision has been dismissed because the appealing party failed to participate as directed in a scheduled hearing before a hearing officer and the appealing party requests that a new hearing be scheduled, a rebuttable presumption of good cause shall be established and a new hearing shall be scheduled. The notice of the new hearing shall contain a statement indicating that the hearing is being rescheduled because the appealing party did not participate in the prior hearing as directed and that the nonappealing party may object at the beginning of the new hearing to the matter being rescheduled. If, at the time of the new hearing, the nonappealing party objects to the matter being rescheduled, the hearing officer shall determine whether good cause has been shown, pursuant to section 12.1.8 , to excuse the failure to participate in the hearing as directed. If, at the time of the hearing, the nonappealing party fails to object to the hearing proceeding, that party waives the opportunity to object to the hearing going forward. If the hearing officer determines that good cause has been shown to excuse the failure to participate in the hearing as directed, the hearing on the deputy's decision shall proceed. If the hearing officer determines that good cause has not been shown to excuse the failure to participate in the hearing as directed, the appeal shall be dismissed.

.5 Notwithstanding these provisions, good cause may not be established for the failure of an appealing party to participate in a second hearing as directed which was set because that party failed to participate as directed in the first hearing. In the event that the appealing party fails to participate as directed in the first setting of a hearing on a deputy's decision and then subsequently fails to participate as directed in the second setting of a hearing, the appeal shall be dismissed and the deputy's decision shall become final. Under such circumstances, the division shall issue a notice to all interested parties that the appeal has been dismissed and that no further rescheduled hearings shall be granted.

12.1.4Written Statement. All statements provided for the purpose of part XII of these regulations shall be in writing and identify the person submitting the statement. The statement may be submitted in person, by postal mail, by facsimile machine, by telephone, by division-approved electronic means, or if submitted to the panel, by panel-approved electronic means.

12.1.5Determination by Panel. Upon receipt of the statement, the panel shall determine whether good cause has been shown for permitting an untimely appeal from a hearing officer's decision or for excusing the failure of a nonappealing party to appear for a hearing. Such determination shall be in writing with supporting findings of fact and shall be provided to all interested parties in person, by mail, by facsimile machine, or by electronic means. If the panel determines that good cause exists for permitting a late appeal, the decision shall contain a written notification that the other-named interested parties may object to the good-cause determination by raising their objections in their written arguments as permitted by regulation 12.1.3. The panel shall consider any objections and conduct further appropriate proceedings to reconsider the good-cause determination.

12.1.6Additional Evidence. In making a determination of whether good cause has been shown for permitting an untimely appeal from a hearing officer's decision or for excusing the failure to appear for a hearing, the panel may request or accept additional written evidence, may obtain additional evidence by other reliable means as shall be deemed appropriate, or may order that a hearing be conducted by a hearing officer to obtain such evidence and to make findings of fact deemed necessary to resolve this issue.

12.1.7Appeals. If any interested party objects to a determination of the chief hearing officer or designee that a rebuttable presumption of good cause exists for an untimely appeal from a deputy's decision; or objects to a determination of the panel based solely on written documents that there is good cause for an untimely appeal, that excuses the failure to appear for a hearing or determines that good cause exists for an untimely request for a new hearing, that interested party may present its objections at the hearing scheduled on the issues in dispute.

.1 The hearing officer shall consider all information in support of or in opposition to the good cause determination presented by the interested parties, including all objections and responses and supporting evidence. The hearing officer shall determine if good cause exists for permitting the untimely appeal or excusing the failure to appear or excusing the untimely request for a new hearing based on the evidence presented.

.2 However, if the hearing officer does not find the facts to be different than those already considered, the hearing officer shall not disturb the prior determination of good cause, and the hearing will proceed on the merits of the issues in dispute. If good cause is overturned, the hearing will be terminated and any previously vacated hearing officer's decision on the merits of the appeal shall be reinstated.

12.1.8Substantive Guidelines. In determining whether good cause has been shown for permitting an untimely action or excusing the failure to act as required, the division or the panel consider:

.1 whether the party acted in the manner that a reasonably prudent individual would have acted under the same or similar circumstances;

.2 whether there was administrative error by the division;

.3 whether the party exercised control over the untimely action, except that the acts and omissions of a party's authorized representative are considered the acts and omissions of the party and are not considered to be a factor outside the party's control as intended by this rule;

.4 the length of time the action was untimely;

.5 whether any other interested party has been prejudiced by the failure to act or untimely action, "prejudiced," as used in this section, means that an interested party will be prevented from presenting of substantially hindered from presenting probative evidence in support of the interested party's position or in the ability to refute the position of the opposing party; and

.6 whether denying good cause would lead to a result that in inconsistent with the law.

.7 Good cause cannot be established to accept or permit an untimely action or to excuse the failure to act, as required, that was caused by the party's failure to keep the division directly and promptly informed by a written, signed statement of his or her current and correct mailing address in person, by mail, by facsimile machine, or by other division-approved electronic means. This provision shall not apply if the party establishes that he or she reasonably believed that the division would not have any need for his or her new address under the circumstances.

.8 A written decision concerning the existence of good cause need not contain findings of fact on every relevant factor, but the basis for the decision must be apparent from the order.

.9 Unless otherwise provided by law, no act subject to this section shall be permitted more than 180 days beyond the applicable timely date.

7 CCR 1101-2-12.1

37 CR 13, July 10, 2014, effective 8/1/2014

39 CR 08, April 25, 2016, effective 5/15/2016

39 CR 22, November 25, 2016, effective 12/15/2016

40 CR 11, June 10, 2017, effective 7/1/2017

40 CR 23, December 10, 2017, effective 12/30/2017

41 CR 08, April 25, 2018, effective 6/3/2018

41 CR 16, August 25, 2018, effective 9/14/2018

42 CR 06, March 25, 2019, effective 4/15/2019

43 CR 08, April 25, 2020, effective 3/20/2020

43 CR 06, March 25, 2020, effective 4/14/2020

43 CR 19, October 10, 2020, effective 10/30/2020