(1) The general assembly finds and declares that individuals receiving care and services from persons employed in programs or facilities described in subsection (7) of this section are vulnerable to mistreatment, including abuse, neglect, and exploitation. It is the intent of the general assembly to minimize the potential for employment of persons with a history of mistreatment of at-risk adults in positions that would allow those persons unsupervised access to these adults. As a result, the general assembly finds it necessary to strengthen protections for vulnerable adults by requiring certain employers to request a CAPS check by the state department to determine if a person who will provide direct care to an at-risk adult has been substantiated in a case of mistreatment of an at-risk adult. The general assembly also finds that it is necessary to require that certain employers cooperate with, and provide access to, county departments during county investigations of mistreatment of atrisk adults pursuant to section 26-3.1-103 (1.3).
(2) As used in this section, unless the context otherwise requires:
"Employee" means a person, other than a volunteer, who is employed by or contracted with an employer, and includes a prospective employee.
"Employer" means a person, facility, entity, or agency described in subsection (7) ofthis section and includes a prospective employer. "Employer" also includes a person hiring someone to provide consumer-directed attendant support services pursuant to article 10 of title 25.5, if the person requests a CAPS check.
The state department shall establish and implement a state-level program for employers to obtain a CAPS check to determine if a person who will provide direct care to an atrisk adult is substantiated in a case of mistreatment of an at-risk adult. The state department's program shall be operational for an employer CAPS check on and after January 1, 2019.
The state department shall not release information relating to any person during aCAPS check unless the person is substantiated in a case of mistreatment of an at-risk adult.
The state department shall promulgate rules for the implementation of this section,which rules must include the following:
The employer process for requesting a CAPS check for an employee who has anactive application for employment for a position in which the person will provide direct care to an at-risk adult;
The state department or county department employees or employee positions grantedaccess to CAPS;
The process for completing a CAPS check and the parameters for establishing andcollecting the fee charged to an employer for each CAPS check;
The information in CAPS that will be made available to an employer requesting a
CAPS check;
The purposes for which the information in CAPS may be made available; and(f) The consequences of the improper release of the information in CAPS.
(6) (a) (I) On and after January 1, 2019, prior to hiring or contracting with an employee who will provide direct care to an at-risk adult, an employer described in subsection (7) of this section shall request a CAPS check by the state department pursuant to this section to determine if the person is substantiated in a case of mistreatment of an at-risk adult. Within ten days after the date of the employer's request, if the employee was substantiated in a case of mistreatment of an at-risk adult, unless the finding was expunged through a successful appeal to the state department, the state department shall provide the employer with information concerning the mistreatment through electronic means, or other means if requested by the employer, including the date of the substantiated finding, the type of mistreatment reported, and the county that investigated the report of mistreatment. If an employer receives a CAPS check on a person and does not initiate the hiring process at the time of receiving the check but wants to hire the person at a subsequent time that is more than thirty days from receipt of the prior CAPS check results, the employer shall request a new CAPS check prior to hiring the person pursuant to state department rules.
A person or entity conducting employee screening on behalf of an employer mayrequest a CAPS check pursuant to this section and may receive the results of the CAPS check from the state department. The person or entity conducting employee screening on behalf of the employer shall provide the employer with the results of the CAPS check.
If the employer is also an employee or volunteer, the employer shall request theCAPS check on himself or herself. If the employee or volunteer is determined during either the initial CAPS check or subsequently as provided in subsection (10) of this section to have a substantiated finding of mistreatment, both the employer and the employer's parent company or oversight agency shall receive the CAPS check results.
An employer described in subsection (7) of this section or a person may request aCAPS check by the state department pursuant to this section on a volunteer who will provide direct care to an at-risk adult to determine if the volunteer is substantiated in a case of mistreatment of an at-risk adult. The volunteer shall provide to the employer written authorization and any required identifying information necessary to conduct a CAPS check pursuant to this section. Within ten days after the date of the employer's request, if the volunteer was substantiated in a case of mistreatment of an at-risk adult, unless the finding was expunged through a successful appeal to the state department, the state department shall provide the employer with information concerning the mistreatment through electronic means, or other means if requested by the employer, including the date of the substantiated finding, the type of mistreatment reported, and the county that investigated the report of mistreatment. For purposes of this subsection (6)(a)(IV), "employer" includes a person or entity conducting volunteer screening on behalf of the employer. The provisions of subsections (6)(d), (6)(e), (6)(e.3), and (6)(e.7) of this section apply to this subsection (6)(a)(IV).
As a condition of employment or contracting, a person seeking employment or tocontract with the employer in a position in which the person will provide direct care to an at-risk adult shall provide to the employer, or to a person or entity conducting employee screening on behalf of the employer, written authorization and any required identifying information necessary to conduct a CAPS check pursuant to this section. The employer shall pay a fee established by the state department for each CAPS check, or may require the person seeking employment or to contract with the employer to pay the required fee for the CAPS check.
(I) An employer, or a person or entity conducting employee screening on behalf ofthe employer, that relies upon information obtained through a CAPS check in making an employment decision or concludes that the nature of any information disqualifies a prospective employee from employment is immune from civil liability in an action brought by the prospective employee for that conclusion or decision unless the CAPS information relied upon is false and the employer, or a person or entity conducting employee screening on behalf of the employer, knows the information is false.
(II) Nothing in this subsection (6)(c) amends, supersedes, or otherwise limits the civil liability of the employer, or a person or entity conducting employee screening on behalf of the employer, with respect to any claim or action related to the employment decision other than a claim or action relating to the information received by the employer, or a person or entity conducting employee screening on behalf of the employer, pursuant to a CAPS check.
(d) (I) Except as provided in subsection (6)(d)(II) of this section, an employer, or a person or entity conducting employee screening on behalf of the employer, is deemed to have violated subsection (6)(e) of this section if the employer, or a person or entity conducting employee screening on behalf of the employer:
Requests a CAPS check pursuant to this section for a person who is not an existingemployee or who does not have an active application for or is not contracting with the employer, or who does not have an active application to contract with the employer, for a position providing direct care to an at-risk adult; or
Releases information obtained pursuant to the CAPS check to any person other thana person directly involved in the employer's hiring process.
(II) An employer, or a person or entity conducting employee screening on behalf of the employer, has not violated subsection (6)(e) of this section if the employer, or a person or entity conducting employee screening on behalf of the employer, releases information received through a CAPS check:
To a state agency or its contractor upon the request of the agency or contractor forpurposes of an employer inspection or survey; or
At the request of a current or prospective employer of a health care worker or caregiver in accordance with section 8-2-111.6 or section 8-2-111.7.
Any person who improperly releases or who willfully permits or encourages the release of data or information obtained through a CAPS check to persons not permitted access to the information pursuant to this article 3.1, commits a class 1 misdemeanor and is punished as provided in section 18-1.3-501.
(e.3) Any person who requests a CAPS check for a person who is not an employee or volunteer or not being considered for employment or who is not a care provider or being considered as a care provider for a recipient of consumer directed attendant support services pursuant to article 10 of title 25.5 commits a class 1 misdemeanor and shall be punished pursuant to section 18-1.3-501.
(e.7) An employee who knowingly provides inaccurate information to his or her employer for a CAPS check, or an employer or other person or entity conducting an employee screening on behalf of the employer that knowingly provides inaccurate information in the request for a CAPS check, commits a class 1 misdemeanor and shall be punished pursuant to section 18-1.3-501.
Nothing in this section prohibits an employer from hiring or contracting with an employee who will provide direct care to an at-risk adult prior to receiving the results of the CAPS check.
(7) The following employers shall request a CAPS check pursuant to this section:
A health facility licensed pursuant to section 25-1.5-103, including those wholly owned and operated by any governmental unit;
An adult day care facility, as defined in section 25.5-6-303 (1);
A community integrated health care service agency, as defined in section 25-3.51301 (1);
A community-centered board or a program-approved service agency providing orcontracting for services and supports pursuant to article 10 of title 25.5;
A single entry point agency, as described in section 25.5-6-106;
An area agency on aging, as defined in section 26-11-201 (2), and any agency orprovider the area agency on aging contracts with to provide services;
A facility operated by the state department for the care and treatment of persons withmental health disorders pursuant to article 65 of title 27;
A facility operated by the state department for the care and treatment of persons withintellectual and developmental disabilities pursuant to article 10.5 of title 27;
Veterans community living centers operated pursuant to article 12 of this title 26; and(j) The office of public guardianship pursuant to section 13-94-105 (6).
A person hiring someone to provide consumer-directed attendant support servicespursuant to article 10 of title 25.5 may request a CAPS check pursuant to this section at the person's expense. The person requesting the CAPS check must comply with state department rules and the provisions of subsection (6) of this section relating to the release of information obtained through a CAPS check.
Except for the costs incurred for the development and initial implementation of theprogram, direct and indirect costs incurred for the administrative appeals process for persons appealing claims of mistreatment of at-risk adults and the direct and indirect costs of conducting employer-requested CAPS checks pursuant to this section are funded through a fee assessed on an employer for each CAPS check. The state department shall establish and collect the fee pursuant to parameters set forth in rule established by the state board. At a minimum, the state board's rules must include a provision requiring the state department to provide notice of the fee to interested persons and the maximum fee amount that the state department shall not exceed without the express approval of the state board. The fee established must not exceed direct and indirect costs incurred for the administrative appeals process for persons appealing claims of mistreatment of at-risk adults and the direct and indirect costs of conducting employer-requested CAPS checks pursuant to this section. Fees collected for CAPS checks shall be transferred to the state treasurer and credited to the records and reports fund created in section 19-1-307 (2.5).
The state department shall provide notification to the employer if a substantiatedfinding of mistreatment by an employee is subsequently entered into CAPS.
Source: L. 2017: Entire section added, (HB 17-1284), ch. 272, p. 1499, § 6, effective
May 31. L. 2018: (7)(g) amended, (SB 18-091), ch. 35, p. 390, § 34, effective August 8. L. 2020: (1), (6)(a)(I), (7)(h), (7)(i), and (10) amended and (6)(a)(III), (6)(a)(IV), (6)(e.3), (6)(e.7), and (7)(j) added, (HB 20-1302), ch. 265, p. 1272, § 6, effective September 14 .
Cross references: For the legislative declaration in SB 18-091, see section 1 of chapter 35, Session Laws of Colorado 2018.