Brian J. Pinkowski, Esq.
The Colorado Department of Public Health and the Environment (the “Department”) has added surveyors to the Health Facilities and Emergency Medical Services Division. Rumor has it that there may be as many as 24 new surveyors. Of course, that means more surveys, and sometimes more fines.
The Department is quite serious about fines, collecting approximately $4.7 Million during 2020.
Firstly, it is important to understand that many of the fines affecting assisted living facilities arise from the Department issuing an “intermediate condition.” The term “intermediate condition” is a short-hand reference for an “intermediate restrictions or conditions on a licensee” that has received a survey and found to be out of compliance (deficient) with the regulations.
The Department has a range of options when they feel a licensee is out of compliance with the law or regulations (deficient). They may impose intermediate restrictions or conditions on a licensee that may include at least one of the following:
(A) Retaining a consultant to address corrective measures;
(B) Monitoring by the Department for a specific period;
(C) Providing additional training to employees, owners, or operators of the residence;
(D) Complying with a directed written plan, to correct the violation; or
(E) Paying a civil fine not to exceed two thousand dollars in a calendar year.
Hypothetically, the Department could issue an Intermediate Condition that does not include a fine. However, if the Department issues an Intermediate Condition that includes a fine, and the licensee intends to challenge the Department’s findings, the licensee has the right to request that payment of the fine be delayed until the challenge has been settled by Informal Review or Informal Dispute Resolution (“IDR”) or in the Office of Administrative Courts.
(B) If the restriction or condition requires payment of a civil fine . . . the licensee may request that the informal review be conducted in person. In addition, the licensee may request and the department shall grant a stay in payment of the fine until final disposition of the restriction or condition.
(C) In the event a licensee is not satisfied with the result of the informal review or chooses not to seek informal review, no intermediate restriction or condition on the licensee shall be imposed until after an opportunity for a hearing has been afforded the licensee pursuant to section 24-4-105, C.R.S.
C.R.S 25-27-106(2)(b)(III)(B) [Emphasis added.]
Thus, if you want to challenge the survey findings and the civil fines associated with Intermediate Conditions, you can request that the Department stay the payment until your case is resolved in court or otherwise settled the matter.
Naturally, we are merely providing general information in this article that is available in the law, not legal advice specific to your situation. You should contact us or your legal counsel for advice specific to your situation if you want to challenge survey findings and any Intermediate Conditions imposed on your facility.
Brian a Principal 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.