3.609.72 Decision and Notification A.

Following the conclusion of the state level fair hearing, the ALJ shall promptly prepare and issue an initial decision and file it with the State Department, Office of Appeals. The Office of Appeals of The State Department is the designee of the State Department’s executive director for reviewing the initial decision of the ALJ. The Office of Appeals enters a final agency decision on behalf of the executive director affirming, modifying, or reversing the initial decision. 1. The initial decision shall make an initial determination whether the county or state department or its agent acted in accordance with, and/or properly interpreted, the rules of the state department and/or the county policies governing the Colorado Works program. 2. The ALJ has no jurisdiction or authority to determine issues of constitutionality or legality of Colorado Statute, departmental rules, or county policy(ies) governing the Colorado Works program. 3. The initial decision shall advise the client who brought the appeal that failure to file exceptions to the initial decision will waive the right to seek judicial review under section 24-4-106, C.R.S. of a final agency decision that affirms the initial decision. 4. The Office of Appeals shall promptly serve the initial decision upon each party by first class mail, and shall transmit a copy of the decision either electronically or by mail to the division of the state department that administers the program(s) pertinent to the appeal. 5. The initial decision shall not be implemented pending review by the Office of Appeals and entry of an agency decision. B. Upon receiving the initial decision, the Office of Appeals may issue an order of remand based on an issue that warrants an immediate remand before the initial decision is even mailed to the parties. Additionally, the Office of Appeals may issue an order of remand after its substantive review of an initial decision, and prior to issuing a final agency decision, based on the need for further clarification, findings, conclusions of law, and/or further proceedings. An order of remand is not a final agency decision that is subject to judicial review under section 24-4-106, C.R.S. C. Any party seeking final agency decision which reverses, modifies, or remands the initial decision of the ALJ shall file exceptions to the decision with the Office of Appeals, within fifteen (15) days (plus three days for mailing) from the date the initial decision is mailed to the parties. If that date falls on a weekend or State holiday, the due date shall be moved to the next business day. Exceptions must state specific grounds for reversal, modification or remand of the initial decision. 1. If the party asserts that the ALJ’s findings of fact are not supported by the weight of the evidence, the party shall, simultaneously with, or prior to, the filing of exceptions request the OAC create a transcript of all or a portion of the hearing and file it with the Office of Appeals. No transcript is required if the review is limited to a pure question of law. Similarly, if the exceptions assert only that the ALJ improperly interpreted or applied State rules or statutes, the party filing exceptions is not required to provide a transcript or recording to the Office of Appeals. If applicable, the exceptions shall state that a transcript has been requested. Within five (5) days of the request for transcript, the party requesting it shall advance the cost therefore to the transcriber designated by the OAC unless the transcriber waives prior payment. 2. A party who is indigent and unable to pay the cost of a transcript may file a written request, which need not be sworn, with the Office of Appeals for permission to submit a copy of the hearing recording instead of the transcript. If submission of a recording is permitted, the party filing exceptions must promptly request a copy of the recording from the OAC and deliver it to the Office of Appeals. Payment in advance shall be required for the preparation of a copy of the recording. 3. The Office of Appeals shall serve a copy of the exceptions on each party by first class mail. Each party shall be limited to ten (10) calendar days from the date exceptions are mailed to the parties in which to file a written response to such exceptions. The Office of Appeals shall not permit oral argument. 4. The Office of Appeals shall not consider evidence that was not part of the record before the ALJ. However, the case may be remanded to the ALJ for rehearing if a party establishes in its exceptions that material evidence has been discovered which the party could not with reasonable diligence have produced at the hearing. 5. While review of the initial decision is pending before the Office of Appeals, the record on review, including any transcript or recording of testimony filed with the Office of Appeals, shall be available for examination by any party at the Office of Appeals during regular business hours. 6. The state department’s division(s) responsible for administering the program(s) relevant to the appeal may file exceptions to the initial decision, or respond to exceptions filed by a party, even though the division has not previously appeared as a party to the appeal. The division's exceptions or responses must be filed in compliance with the requirements of this section exceptions filed by a division that did not appear as a party at the hearing shall be treated as requesting review of the initial decision upon the state department's own motion. 7. In the absence of exceptions filed by any party or by a division of the state department, the Office of Appeals shall review the initial decision, and may review the hearing file of the ALJ and/or the recorded testimony of witnesses, before entering a final agency decision. Review by the Office of Appeals shall determine whether the decision properly interprets and applies the rules of the state department and/or relevant statutes, and whether the findings of fact and conclusions of law support the decision. If a party or division of the state department objects to the final agency decision entered upon review by the Office of Appeals, the party or division may seek reconsideration of the final agency decision pursuant to subsection c, below. 8. The Office of Appeals shall mail copies of the final agency decision to all parties by first class mail. 9. For purposes of requesting judicial review under section 24-4-106, C.R.S., the effective date of the final agency decision shall be the third day after the date the decision is mailed to the parties, even if the third day falls on Saturday, Sunday, or a legal holiday. The parties shall be advised of this in the final agency decision. 10. The State or county department shall initiate action to comply with the final agency decision within three (3) business days after the effective date. The department shall comply with the decision even if reconsideration is requested, unless the effective date of the agency decision is postponed by order of the Office of Appeals or a reviewing court pursuant to section 24-4-106(5), C.R.S. D. No motion for reconsideration shall be granted unless it is filed in writing with the Office of Appeals within fifteen (15) days of the date that the final agency decision is mailed to the parties. The motion must state specific grounds for reconsideration of the final agency decision. The Office of Appeals shall mail a copy of the motion for reconsideration to each party of record and transmit electronically or in writing to the appropriate division of the state department. A motion for reconsideration of a final agency decision may be granted by the Office of Appeals for the following reasons: 1. A showing of good cause for failure to file exceptions to the initial decision within the fifteen (15) day period allowed by section 3.609.7; or, 2. A showing that the agency decision is based upon a clear or plain error of fact or law. An error of law means failure by the Office of Appeals to follow a rule, statute, or court decision, which controls the outcome of the appeal. E. When a final agency decision concludes that an action of the county or state department was not in accordance with rules of the department, or when the county or state department determines that its action was not supported by the state department’s rules after the client makes a request for a hearing, the adjustment or corrective payment is made retroactively to the date of the incorrect action. F. The client is to be fully informed by the final agency decision of his or her further right to apply for judicial review of the agency decision. Judicial review can be started by filing an action for review in the appropriate state district court. Any such action must be filed in accordance with section 24- 4-106, C.R.S. and with the Colorado Rules of Civil Procedure within thirty-five (35) days after the final agency decision becomes effective. G. The state department will establish and maintain a method for informing, in summary and depersonalized form, all county departments and other interested persons concerning the issues raised and decisions made on appeals.