How to contest a CDPHE Survey

Brian J. Pinkowski, Esq.

What do you do? You and your caregivers have worked your hearts out. Despite the blood sweat and tears you have expended to make things right for your residents, sometimes the Colorado Department of Public Health and the Environment (“Department”) surveyors show up and issue deficiency tags that seem unfair, or wrong.

A licensee has two pathways to contest the Department’s decision. Informal Dispute Resolution (IDR) and Appeal to the Office of Administrative Courts. (Appeal).

The survey results that cause the most upset for licensees typically have tags that include an “Intermediate Condition.”

Intermediate restrictions or conditions may be imposed by the Department when the Department finds the assisted living residence has violated statutory or regulatory requirements.

The term “intermediate condition” is a short-hand reference for an “intermediate restriction or condition on a licensee” that has received a survey and found to be out of compliance (deficient) with the regulations. You can find out a little more about fines here: When Do I have to Pay Those Pesky Fines.

If the licensee intends to challenge the Department’s survey findings and the intermediate condition, the first option available to the licensee is to request an Informal Review or Informal Dispute Resolution (“IDR”). The Licensee will, without an attorney, present their reasons as to why the findings are incorrect, and the Department surveyor will present their justifications, and the Committee will vote to accept or reject the surveyor’s findings. If you are familiar with the IDR process, you are likely aware that the odds are somewhat low that the state employees who comprise the majority of the IDR committee will vote against the surveyor, their coworker.

Thus, IDR hearings are often disappointing for licensees.

However, the Colorado legislature provides another path for licensees to contest a survey. A licensee can appeal the Department’s decision to the Office of Administrative Courts with a simple letter to the Department requesting an appeal to the Office of Administrative Courts.

Naturally, I am providing only general information in this article that is available in the law, and not legal advice specific to your situation. You should contact us or your legal counsel for advice specific to your situation, particularly if you want to challenge survey findings and any Intermediate Conditions imposed on your facility.  An attorney is recommended for the appeal process with the court.

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Brian is an attorney with Pinkowski Law & Policy Group, LLC, a law firm focused on the needs of assisted living facilities of all sizes in Colorado and across the U.S.

Brian is also the President of the Residential Assisted Living National Association, a 40,000 member association partnered with the Colorado Assisted Living Association and committed to elevating standards of assisted living care through continuing education, marketing, support, and legal expertise.