CO Code § 27-90-111 (2021)
2021 Colorado Code|Title 27 - Behavioral Health|Article 90 - Institutions- Department of Human Services|§ 27-90-111. Employment of Personnel - Screening of Applicants - Disqualifications From Employment - Contracts - Rules - Definitions

  The general assembly recognizes that many of the individuals receiving services from department employees pursuant to title 26 or this title 27 are unable to defend themselves and are therefore vulnerable to abuse or assault. It is the intent of the general assembly to minimize the potential for hiring and employing persons with a propensity toward abuse, assault, or similar offenses against others for positions that would provide them with unsupervised access to vulnerable persons. The general assembly declares that, in accordance with section 13 of article XII of the state constitution, for purposes of terminating employees in the state personnel system who are finally convicted of criminal conduct, offenses involving moral turpitude include, but are not limited to, the disqualifying offenses specified in subsection (9) of this section.    For purposes of this section, unless the context otherwise requires:   “Contracting agency” means an agency, corporation, nonprofit entity, or any other outside entity that contracts with the department to provide services pursuant to title 26 or this title 27 and that provides services that involve direct contact with vulnerable persons.    “Conviction” means a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by the court or adjudication for an offense that would constitute a criminal offense if committed by an adult. “Conviction” also includes having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.  (b.5) “Department employee” means an employee of the department who is employed through the state personnel system of the state of Colorado.     “Direct contact” means providing face-to-face care, training, supervision, counseling, consultation, or medication assistance to vulnerable persons, regardless of the level of supervision of the department employee. “Direct contact” may include positions in which persons have access to or unsupervised time with clients or patients, including but not limited to maintenance personnel, housekeeping staff, kitchen staff, and security personnel.    Repealed.  (d.5) “Independent contractor” means an individual who contracts directly with the department and who is designated, by the executive director or the executive director's designee, as serving in a contract position involving direct contact with vulnerable persons.     “Vulnerable person” means any individual served by the department who is susceptible to abuse or mistreatment because of the individual's circumstances, including but not limited to the individual's age, disability, frailty, behavioral or mental health, intellectual and developmental disability, or ill health.       The employment screening and disqualification requirements in this section apply to the following facilities or programs operated by the department:   Any facility operated by the department for the care and treatment of persons with a mental health disorder pursuant to article 65 of this title 27;    Any facility operated by the department for the care and treatment of persons with intellectual and developmental disabilities pursuant to article 10.5 of this title 27;    Repealed.    Any direct services identified and provided by the department in which department employees, independent contractors, or contracting agencies have direct contact with vulnerable persons in a state-operated facility or in a vulnerable person's home or residence;    Veterans community living centers operated pursuant to article 12 of title 26, C.R.S.;    Any facility directly operated by the department in which juveniles who are in the custody of the department reside, including detention or commitment centers; and    Any secure facility contracted for by the department pursuant to section 19-2.5-1502 in which juveniles who are in the custody of the department reside.       Prior to the department's permanent employment of a person in a position that would require that person to have direct contact with a vulnerable person, the executive director or any division head of the department shall make an inquiry to the director of the Colorado bureau of investigation to ascertain whether the person has a criminal history. The person's employment is conditional upon a satisfactory state and national fingerprint-based criminal history record check. A criminal history record check conducted pursuant to this subsection (4) must include but need not be limited to arrests, conviction records, and the disposition of any criminal charges. The department shall require the person to have his or her fingerprints taken by a local law enforcement agency or any third party approved by the Colorado bureau of investigation. If an approved third party takes the person's fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved livescan equipment. Third-party vendors shall not keep the applicant information for more than thirty days unless requested to do so by the applicant. The department shall forward those fingerprints to the Colorado bureau of investigation for the purpose of fingerprint processing utilizing the files and records of the Colorado bureau of investigation and the federal bureau of investigation. When the results of a fingerprint-based criminal history record check of a person performed pursuant to this section reveal a record of arrest without a disposition, the department shall require that person to submit to a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d). The department shall pay for the costs of criminal history record checks conducted pursuant to this section out of existing appropriations.    The executive director or any division head shall contact previous employers of any person who is one of the top three finalists for a position that would require that person to have direct contact with any vulnerable person, for the purpose of obtaining information and recommendations that may be relevant to the person's fitness for employment. Any previous employer of an applicant for employment who provides information to the executive director or a division head or who makes a recommendation concerning the person shall be immune from civil liability unless the information is false and the previous employer knows such information is false or acts with reckless disregard concerning the veracity of the information.    Any local agency or provider of services pursuant to this title or title 26, C.R.S., may investigate applicants for employment.    The executive director, any division head, or any local agency or provider who relies on information obtained pursuant to this section in making an employment decision or who concludes that the nature of any information disqualifies the person from employment as either a department employee or an independent contractor is immune from civil liability for that decision or conclusion unless the information relied upon is false and the executive director, division head, or local agency or provider knows the information is false or acts with reckless disregard concerning the veracity of the information.    The executive director may promulgate such rules as are necessary to implement the provisions of this section.      If the criminal history record check conducted pursuant to subsection (4) or (11) of this section indicates that a prospective department employee or prospective independent contractor was convicted of any of the disqualifying offenses set forth in subsection (9)(b) or (9)(c) of this section, the person is disqualified from employment either as a department employee or as an independent contractor in a position involving direct contact with vulnerable persons. The department shall not hire or retain a person who is disqualified as a result of this section for a position involving direct contact with vulnerable persons nor is the person eligible to contract for or continue in a contract position designated by the executive director or the executive director's designee as involving direct contact with vulnerable persons.    Except as otherwise provided in subsection (9)(d) of this section, a person is disqualified from employment either as a department employee or as an independent contractor, regardless of the length of time that may have passed since the discharge of the sentence imposed for any of the following criminal offenses:   A crime of violence, as defined in section 18-1.3-406, C.R.S.;    Any felony offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.;    Any felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3, C.R.S.;    Any felony offense of child abuse, as defined in section 18-6-401, C.R.S.; or    Any felony offense in any other state, the elements of which are substantially similar to the elements of any of the offenses described in subparagraph (I), (II), (III), or (IV) of this paragraph (b).       Except as otherwise provided in subsection (9)(d) of this section, a person is disqualified from employment either as a department employee or as an independent contractor if less than ten years have passed since the person was discharged from a sentence imposed for conviction of any of the following criminal offenses:   Third degree assault, as described in section 18-3-204, C.R.S.;    Any misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3, C.R.S.;    Violation of a protection order, as described in section 18-6-803.5, C.R.S.;    Any misdemeanor offense of child abuse, as defined in section 18-6-401, C.R.S.;    Any misdemeanor offense of sexual assault on a client by a psychotherapist, as defined in section 18-3-405.5, C.R.S.; or    Any misdemeanor offense in any other state, the elements of which are substantially similar to the elements of any of the offenses described in subparagraph (I), (II), (III), (IV), or (V) of this paragraph (c).       If a person was adjudicated a juvenile delinquent for the commission of any disqualifying offense set forth in either paragraph (b) or (c) of this subsection (9) and more than seven years have elapsed since the commission of the offense, the person may submit a written request to the executive director as provided in subsection (13) of this section for reconsideration of the disqualification.         Any department employee who is employed in a position involving direct contact with vulnerable persons and who is arrested, charged with, or issued a summons and complaint for any of the disqualifying offenses set forth in subsection (9)(b) or (9)(c) of this section shall inform his or her supervisor of the arrest, charges, or issuance of a summons and complaint before returning to work. Any department employee who fails to make such a report or disclosure may be terminated from employment. The department or any facility operated by the department shall advise its employees and independent contractors in writing of the requirement for self-reporting of the disqualifying offenses set forth in subsection (9)(b) or (9)(c) of this section.    Any department employee who is charged with any of the disqualifying offenses set forth in subsection (9)(b) of this section must be suspended until resolution of the criminal charges or completion of administrative action by the department. A department employee who is charged with any of the disqualifying offenses set forth in subsection (9)(c) of this section may be suspended at the discretion of the department until resolution of the criminal charges or completion of administrative action by the department. The department employee shall inform his or her supervisor of the disposition of the criminal charges. Any department employee who fails to report such information may be terminated from employment. Upon notification to the department that the department employee has received a conviction for any of the disqualifying offenses described in subsection (9)(b) or (9)(c) of this section, the department employee must be terminated from employment. Nothing in this subsection (10)(b) prohibits the department from taking administrative action if the department employee's conduct would justify disciplinary action under section 13 of article XII of the state constitution for failure to comply with standards of efficient service or competence or for willful misconduct, willful failure, or inability to perform his or her duties.       The general assembly recognizes that the department contracts with persons to serve in positions that involve direct contact with vulnerable persons in state-operated facilities or to provide state-funded services that involve direct contact with vulnerable persons in the homes and residences of such vulnerable persons. In order to protect vulnerable persons who come into contact with these independent contractors, the executive director or his or her designee shall designate those contract positions that involve direct contact with vulnerable persons that are subject to the provisions of this subsection (11). In any contract initially entered into or renewed on or after July 1, 1999, concerning a contract position that has been designated as involving direct contact with vulnerable persons, the department shall include the following terms and conditions:   That the independent contractor shall submit to a state and national fingerprint-based criminal history record check as described in subsection (4) of this section for state employees; except that the independent contractor shall bear the cost of such criminal history record checks;    That the independent contractor shall report any arrests, charges, or summonses for any of the disqualifying offenses specified in subsection (9)(b) or (9)(c) of this section to the independent contractor's supervisor at the department before returning to work;    That the independent contractor may be suspended or terminated, at the discretion of the department, prior to the resolution of the criminal charges for any of the disqualifying offenses specified in subsection (9)(b) or (9)(c) of this section;    That, upon notification to the department that the independent contractor has been convicted for any of the disqualifying offenses described in subsection (9)(b) or (9)(c) of this section, the independent contractor's position with the department must be terminated. (11.5)   The general assembly also recognizes that the department contracts with outside contracting agencies for services where the contracting agency's employees will have direct contact with vulnerable persons who receive services pursuant to title 26 and this title 27. To protect vulnerable persons who come into contact with employees of a contracting agency, the executive director, or his or her designee, shall designate those contracts that will involve direct contact with vulnerable persons and that are therefore subject to the provisions of this subsection (11.5). Any contract with a contracting agency that is initially entered into or is renewed on or after July 1, 2018, and that has been designated as a contract that involves direct contact with vulnerable persons, must include the following terms and conditions:   The contracting agency shall submit its employees who will have direct contact with vulnerable persons as a result of the contract to a state and national fingerprint-based criminal history record check. The contracting agency shall provide the information required by subsection (4) of this section to the executive director or any division head of the department who works directly with the contracting agency.    That the contracting agency shall require its employees who will have direct contact with vulnerable persons as a result of the contract to report any arrests, charges, or summonses for any of the disqualifying offenses specified in subsection (9)(b) or (9)(c) of this section to the contracting agency's supervisor before returning to work. The contracting agency's supervisor shall immediately notify the executive director or the respective division head of the department who works directly with the contracting agency upon notification of any such report made by an employee.    That the contracting agency may be required to remove an employee from having direct contact with vulnerable persons, at the discretion of the department, prior to the resolution of the criminal charges for any of the disqualifying offenses specified in subsection (9)(b) or (9)(c) of this section;    That, upon notification to the department that the contracting agency's employee who has direct contact with vulnerable persons as a result of the contract has been convicted of any of the disqualifying offenses specified in subsection (9)(b) or (9)(c) of this section, such employee is no longer permitted to work in any capacity with the department where he or she would have direct contact with vulnerable persons as a result of the contract; and    That, if the contracting agency fails to comply with subsections (11.5)(a)(I) to (11.5)(a)(IV) of this section, the contract may be immediately terminated.       If the contracting agency is also licensed pursuant to section 26-6-104 and has conducted a criminal history record check pursuant to section 26-6-104 (7)(a)(III) for its employees who will have direct contact with vulnerable persons as a result of the contract, the department may accept such criminal history record check to satisfy the requirements of this subsection (11.5).          A department employee, independent contractor, or employee of a contracting agency who is disqualified due to conviction of any of the disqualifying offenses set forth in subsection (9)(b) or (9)(c) of this section may submit a written request to the executive director for reconsideration of the disqualification. Reconsideration pursuant to this subsection (12) may only be based on a mistake of fact such as an error in the identity of the person for whom the criminal history record check was performed pursuant to subsection (11) of this section. If the executive director determines that there was a mistake of fact involving the identity of the person, the executive director shall issue a finding that the disqualifying factor is not a bar to the person's employment either as a department employee or as an independent contractor or employee of a contracting agency.      A department employee, an independent contractor, or an employee of a contracting agency who is disqualified for conviction of an offense specified in subsection (9)(c) of this section may submit a written request to the executive director for reconsideration of the disqualification and a review of whether the person poses a risk of harm to vulnerable persons. In reviewing a disqualification, the executive director shall give predominant weight to the safety of vulnerable persons over the interests of the disqualified person. The final determination must be based upon a review of:   The seriousness of the disqualifying offense;    Whether the person has a conviction for more than one disqualifying offense;    The vulnerability of the victim at the time the disqualifying offense was committed;    The time elapsed without a repeat of the same or similar disqualifying offense;    Documentation of successful completion of training or rehabilitation pertinent to the disqualifying offense; and    Any other relevant information submitted by the disqualified person.       The decision of the executive director shall constitute final agency action.       Nothing in this section shall be construed to preclude the department or the director of any facility operated by the department from adopting a policy regarding self-reporting of arrests, charges, or summonses or a policy regarding disqualification from employment that includes other offenses not set forth in paragraph (b) or (c) of subsection (9) of this section.      In considering any disciplinary action under section 24-50-125 (1) against an employee who is certified to any class or position in the state personnel system for engaging in mistreatment, abuse, neglect, or exploitation against a vulnerable person, the appointing authority shall give weight to the safety of vulnerable persons over the interests of any other person. For purposes of this subsection (15), “mistreatment”, “abuse”, “neglect”, or “exploitation” shall have the same definitions as contained in article 22 of title 16, articles 3 and 6.5 of title 18, articles 1 and 3 of title 19, article 3.1 of title 26, and this article 90 and titles 38 and 42 of the code of federal regulations, as amended.    If the appointing authority finds that the employee has engaged in mistreatment, abuse, neglect, or exploitation against a vulnerable person, the appointing authority may take such disciplinary action as the appointing authority deems appropriate, up to and including termination, taking into consideration the harm or risk of harm to vulnerable persons created by the employee's actions. Nothing in this subsection (15)(b) affects the constitutional or statutory due process rights afforded to an employee who is certified to any class or position in the state personnel system.    This subsection (15) applies regardless of whether the employee has been charged with or convicted of a disqualifying offense under subsection (9)(b) or (9)(c) of this section.        History. Source: L. 2010: Entire article added with relocations,(SB 10-175), ch. 188, p. 762, § 2, effective April 29. L. 2013: (3)(e) amended,(HB 13-1300), ch. 316, p. 1692, § 87, effective August 7. L. 2014: (3)(e) amended,(SB 14-096), ch. 59, p. 274, § 30, effective August 6. L. 2015: (3)(c)(II) added by revision,(SB 15-239), ch. 160, pp. 488, 490 §§ 8, 14. L. 2017: (2)(e), (3)(a), and (3)(b) amended,(SB 17-242), ch. 263, p. 1376, § 294, effective May 25; (4) amended,(SB 17-189), ch. 149, p. 504, § 14, effective August 9. L. 2018: (1), (2)(a), (2)(c), (3)(d), (4), (7), (9)(a), IP(9)(b), IP(9)(c), (10), (11), (12), and IP(13)(a) amended, (2)(b.5), (2)(d.5), and (11.5) added, and (2)(d) repealed,(HB 18-1411), ch. 238, p. 1484, § 2, effective May 24; (15) added,(HB 18-1065), ch. 142, p. 919, § 1, effective August 8. L. 2019: (4) amended,(HB 19-1166), ch. 125, p. 558, § 49, effective April 18. L. 2021: (3)(g) amended,(SB 21-059), ch. 136, p. 750, § 135, effective October 1.    Editor's note:    This section is similar to former § 27-1-110 as it existed prior to 2010.    Subsection (3)(c)(II) provided for the repeal of subsection (3)(c), effective July 1, 2016. (See L. 2015, pp. 488, 490.)     Cross references:   For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.