SUMMARY OF THE BASIS AND PURPOSE FOR THE PROPOSED RULE

Amend rules associated with unemployment insurance appeals to facilitate a streamlined process for determining good cause as it relates to actions associated with appeals.

Sections 11, Appeals Procedure, and 12, Determination of Good Cause, are proposed to be amended to implement a process that conforms to federal requirements and allows the Division of Unemployment Insurance to better meet the performance measures, provide more efficient service to our customers and eliminate red tape, and process appeals in a timely manner.

Proposed Rules

PART XI REDETERMINATIONS AND APPEALS
11.2 APPEALS PROCEDURE
11.2.1 Statutory References: 8-72-108, 8-74-101 to 8-74-109, 8-76-103 (4), 8-76-113, and 8-80-102, C.R.S.
11.2.13 Failure to Appear.

.1 APPEALING PARTY. In the event IF the appealing party fails to appear at the time and place scheduled for OF the hearing before the hearing officer, for which notice has been provided, such nonappearance shall constitute a withdrawal of the appeal, THE APPEAL SHALL BE DISMISSED and the decision that was the subject of the appeal shall become final., unless the party establishes, pursuant to part XII of the regulations, that he or she had good cause for excusing the failure to appear. Written notice that the appeal has been dismissed shall be provided to the interested parties named in the caption. THE APPEALING PARTY MAY REQUEST THAT THE APPEAL BE REINSTATED AND THE HEARING BE RESCHEDULED PURSUANT TO THE PROCEDURES SET FORTH IN PART XII OF THE REGULATIONS. If a written request that the hearing be rescheduled is made, the THE request must be received by the division within twenty calendar days after the date the dismissal notice was issued MAILED by the division. An untimely request that a hearing be rescheduled may be permitted by the division for good cause shown, pursuant to the procedure set forth in part XII of the regulations.

.2 NONAPPEALING PARTY. In the event that IF any other interested party fails to appear for a scheduled hearing, and a decision is issued by a hearing officer on the merits of the appeal, such THE party WHO FAILED TO APPEAR may request that a new hearing be scheduled either by filing a written request with the panel or filing a written appeal from the hearing officer's decision. containing such request, received by the panel within twenty calendar days after the date of mailing of the hearing officer's decision, and establishing THE WRITTEN STATEMENT SHALL INCLUDE DETAILS, pursuant to part XII of the regulations, TO ESTABLISH that he or she had good cause for excusing the failure to appear for the appeal hearing. Such a THE request for a new hearing shall be filed with the panel in person, by mail, by facsimile machine or by panel-approved electronic means, or at a public employment office, the central office of the division, the office where the hearing officer is located, or by division-approved electronic means AND SHALL BE RECEIVED BY THE PANEL WITHIN TWENTY CALENDAR DAYS AFTER THE DATE MAILED ON THE HEARING OFFICER’S DECISION. An untimely request for a new hearing may be permitted by the panel for good cause shown, pursuant to the procedure set forth in part XII of the regulations. If it is determined that the party has shown good cause for the failure to appear, the hearing officer's decision that was issued on the merits of the appeal shall be vacated and a new hearing scheduled forthwith.

.3 REPRESENTATIVE OF A PARTY. When an interested party's attorney or other designated representative appears for and participates in the scheduled hearing on the party's behalf, the party shall be deemed to have appeared for the hearing, for the purposes of this part XI of the regulations.

PART XII GOOD CAUSE
12.1 DETERMINATION OF GOOD CAUSE
12.1.1 Statutory References: 8-73-107 (1)(h), 8-73-108 (5)(e)(XVIII)(XIX), 8-74-102, 8-74-106, 8-76-110 (2)(g), 8-76-110 (4)(e), 8-76-113, and 8-79-104 (1)(d), C.R.S.

12.1.3 Procedure. 
.1  Whenever an interested party files an untimely appeal from a deputy’s decision, or whenever an appeal from a deputy’s decision has been dismissed because the appealing party has failed to appear for a scheduled hearing before a hearing officer and has requested that a new hearing be scheduled, the division shall determine if good cause has been shown for permitting the untimely appeal or excusing the failure to appear. Whenever an interested party files an untimely appeal from a hearing officer’s decision, or whenever an interested party failed to appear for a hearing held on an appeal from a deputy’s decision and has filed a request for a new hearing, the panel shall determine if good cause has been shown for permitting the untimely appeal or excusing the failure to appear. The division or the panel shall make a determination of good cause only if the untimely appeal or request for new hearing contains a statement of the reasons for which the party failed to act in a timely manner or if information within the appeal file supports a determination of good cause. If the party’s untimely appeal or request for a new hearing does not contain such a statement and if the appeal file does not contain information supportive of a finding of good cause, the division or the panel, as appropriate, shall notify the party that the untimely appeal or request for a new hearing shall not be accepted unless the party can show good cause for his or her failure to act as required, and the party shall have ten calendar days from the date of such notice to submit a written statement with the division or the panel, as appropriate. If a party has submitted a written statement with the untimely appeal or initial new hearing request, but the statement is insufficient from which to determine whether or not there is good cause, the division or panel, as appropriate, shall make a reasonable effort to elicit such additional specific information as is necessary to make a determination. A REBUTTABLE PRESUMPTION OF GOOD CAUSE SHALL BE ESTABLISHED AND A HEARING SHALL BE SCHEDULED UNLESS THE APPEAL WAS RECEIVED MORE THAN 180 DAYS BEYOND THE EXPIRATION OF THE TIMELY FILING PERIOD.  THE NOTICE OF HEARING SHALL CONTAIN A STATEMENT INDICATING THAT THE APPEAL WAS FILED BEYOND THE EXPIRATION OF THE TIMELY FILING PERIOD AND THAT THE NONAPPEALING PARTY MAY OBJECT TO THE HEARING BEING GRANTED AT THE TIME OF THE NEW HEARING.  IF THE NONAPPEALING PARTY FAILS AT THE TIME OF THE HEARING TO OBJECT TO THE HEARING PROCEEDING, THAT PARTY WAIVES THE OPPORTUNITY TO OBJECT TO THE HEARING GOING FORWARD.  IF THE NONAPPEALING PARTY OBJECTS AT THE TIME OF THE HEARING TO THE MATTER BEING SCHEDULED, THE HEARING OFFICER SHALL DETERMINE WHETHER GOOD CAUSE HAS BEEN SHOWN, PURSUANT TO SECTION 12.1.8, FOR PERMITTING THE UNTIMELY APPEAL.  IF THE HEARING OFFICER DETERMINES THAT GOOD CAUSE HAS BEEN SHOWN FOR PERMITTING THE UNTIMELY APPEAL, THE HEARING SHALL PROCEED.  IF THE HEARING OFFICER DETERMINES THAT GOOD CAUSE HAS NOT BEEN SHOWN FOR PERMITTING THE UNTIMELY APPEAL, THE APPEAL SHALL BE DISMISSED. 

.2  IN THE EVENT AN INTERESTED PARTY FILES AN UNTIMELY APPEAL FROM A DEPUTY’S DECISION OR MAKES A REQUEST FOR A NEW HEARING AND THE APPEAL OR HEARING REQUEST IS RECEIVED MORE THAN 180 DAYS BEYOND THE EXPIRATION OF THE TIMELY FILING PERIOD, GOOD CAUSE MAY NOT BE ESTABLISHED, A HEARING SHALL NOT BE SCHEDULED, THE APPEAL SHALL BE DISMISSED, AND THE DEPUTY’S DECISION SHALL BECOME FINAL.

.3  WHENEVER AN INTERESTED PARTY FILES AN UNTIMELY APPEAL FROM A HEARING OFFICER’S DECISION, OR FAILS TO APPEAR FOR A HEARING HELD ON AN APPEAL FROM A DEPUTY’S DECISION AND HAS FILED A REQUEST FOR A NEW HEARING, THE PANEL SHALL DETERMINE IF GOOD CAUSE HAS BEEN SHOWN, PURSUANT TO SECTION 12.1.8, FOR PERMITTING THE UNTIMELY APPEAL OR EXCUSING THE FAILURE TO APPEAR.. THE PANEL SHALL MAKE A DETERMINATION OF GOOD CAUSE ONLY IF THE UNTIMELY APPEAL OR REQUEST FOR NEW HEARING CONTAINS A STATEMENT OF THE REASONS FOR WHICH THE PARTY FAILED TO ACT IN A TIMELY MANNER OR IF INFORMATION WITHIN THE APPEAL FILE SUPPORTS A DETERMINATION OF GOOD CAUSE. IF THE PARTY’S UNTIMELY APPEAL OR REQUEST FOR A NEW HEARING DOES NOT ESTABLISH GOOD CAUSE, THE PANEL MAY REQUEST AN EXPLANATION IN WRITING, BY POSTAL MAIL, BY APPROVED ELECTRONIC MEANS, OR BY TELEPHONE.  THE PARTY SHALL RESPOND TO ANY SUCH REQUEST WITHIN TEN DAYS. 

.4  WHENEVER AN APPEAL FROM A DEPUTY’S DECISION HAS BEEN DISMISSED BECAUSE THE APPEALING PARTY FAILED TO APPEAR FOR A SCHEDULED HEARING BEFORE A HEARING OFFICER AND THE APPEALING PARTY REQUESTS THAT A NEW HEARING BE SCHEDULED, A REBUTTABLE PRESUMPTION OF GOOD CAUSE SHALL BE ESTABLISHED AND A NEW HEARING SHALL BE SCHEDULED.  THE NOTICE OF THE NEW HEARING SHALL CONTAIN A STATEMENT INDICATING THAT THE HEARING IS BEING RESCHEDULED BECAUSE THE APPEALING PARTY DID NOT APPEAR FOR THE PRIOR HEARING AND THAT THE NONAPPEALING PARTY MAY OBJECT AT THE BEGINNING OF THE NEW HEARING TO THE MATTER BEING RESCHEDULED.  IF, AT THE TIME OF THE NEW HEARING, THE NONAPPEALING PARTY OBJECTS TO THE MATTER BEING RESCHEDULED, THE HEARING OFFICER SHALL DETERMINE WHETHER GOOD CAUSE HAS BEEN SHOWN, PURSUANT TO SECTION 12.1.8, TO EXCUSE THE FAILURE TO APPEAR. IF, AT THE TIME OF THE HEARING, THE NONAPPEALING PARTY FAILS TO OBJECT TO THE HEARING PROCEEDING, THAT PARTY WAIVES THE OPPORTUNITY TO OBJECT TO THE HEARING GOING FORWARD.  IF THE HEARING OFFICER DETERMINES THAT GOOD CAUSE HAS BEEN SHOWN TO EXCUSE THE FAILURE TO APPEAR, THE HEARING ON THE DEPUTY’S DECISION SHALL PROCEED. IF THE HEARING OFFICER DETERMINES THAT GOOD CAUSE HAS NOT BEEN SHOWN TO EXCUSE THE FAILURE TO APPEAR, THE APPEAL SHALL BE DISMISSED.

.5 NOTWITHSTANDING THESE PROVISIONS, GOOD CAUSE MAY NOT BE ESTABLISHED FOR THE FAILURE OF AN APPEALING PARTY TO APPEAR FOR A SECOND HEARING WHICH WAS SET BECAUSE THAT PARTY FAILED TO APPEAR FOR THE FIRST HEARING.  IN THE EVENT THAT THE APPEALING PARTY FAILS TO APPEAR FOR THE FIRST SETTING OF A HEARING ON A DEPUTY’S DECISION AND THEN SUBSEQUENTLY FAILS TO APPEAR FOR THE SECOND SETTING OF A HEARING, THE APPEAL SHALL BE DISMISSED AND THE DEPUTY’S DECISION SHALL BECOME FINAL.  UNDER SUCH CIRCUMSTANCES, THE DIVISION SHALL ISSUE A NOTICE TO ALL INTERESTED PARTIES THAT THE APPEAL HAS BEEN DISMISSED AND THAT NO FURTHER RESCHEDULED HEARINGS SHALL BE GRANTED.

12.1.4 Signing of Statement. All statements provided for the purpose of part XII of these regulations shall BE IN WRITING AND IDENTIFY THE PERSON SUBMITTING THE STATEMENT.be written, signed by the person providing the statement, and   THE STATEMENT may be submitted in person, by POSTAL mail, by facsimile machine, BY TELEPHONE, or by division-approved electronic means, or if submitted to the panel, by panel-approved electronic means.

12.1.5 Determination of Good Cause. Upon receipt of the statement, the chief hearing officer or designee or the panel, as appropriate, shall determine whether good cause has been shown for permitting an untimely appeal from a deputy's decision or a hearing officer's decision; or for permitting the untimely request for a hearing; or for excusing the failure OF A NONAPPEALING PARTY to appear for a hearing. Such determination shall be in writing with supporting findings of fact and shall be provided to all interested parties in person, by mail, by facsimile machine, or by electronic means. If the panel determines that good cause exists for permitting a late appeal, the decision shall contain a written notification that the other-named interested parties may object to the good-cause determination by raising their objections in their written arguments as permitted by regulation 12.1.311.2.15.12. The panel shall consider any objections and conduct further appropriate proceedings to reconsider the good-cause determination.

12.1.6 Additional Evidence. In determining whether good cause has been shown for permitting an untimely appeal from a deputy's decision or for excusing failure to appear for a hearing, the chief hearing officer or designee may take or accept additional reliable evidence by such means as shall be deemed appropriate for the resolution of the issue, including holding a hearing. In making an initial determination of whether good cause has been shown for permitting an untimely appeal from a hearing officer's decision or for excusing the failure to appear for a hearing, the panel may request or accept additional written evidence, may obtain additional evidence by other reliable means as shall be deemed appropriate, or may order that a hearing be conducted by a hearing officer to obtain such evidence AND TO MAKE FINDINGS OF FACT deemed necessary to resolve this issue.

12.1.7 Appeals. If any interested party objects to a determination of the chief hearing officer or designee or the panel, based solely on written documents, that good cause exists for an untimely appeal from a deputy's decision; or objects to a determination of the chief hearing officer or designee or the panel, that excuses the failure to appear for a hearing or determines that good cause exists for an untimely request for a new hearing; or objects to a determination that good cause exists for accepting an untimely appeal and a new hearing is required because the complete record of the proceedings is no longer available, that interested party may present its objections at the hearing scheduled on the issues in dispute. ANY INTERESTED PARTY MAY PRESENT ITS OBJECTIONS AT THE HEARING SCHEDULED ON THE ISSUES IN DISPUTE IF THE INTERESTED PARTY OBJECTS TO A DETERMINATION OF THE CHIEF HEARING OFFICER OR DESIGNEE OR THE PANEL THAT A REBUTTABLE PRESUMPTION OF GOOD CAUSE EXISTS FOR AN UNTIMELY APPEAL FROM A DEPUTY'S DECISION; THAT EXCUSES THE FAILURE TO APPEAR FOR A HEARING; OR THAT GOOD CAUSE EXISTS FOR AN UNTIMELY REQUEST FOR A NEW HEARING. The hearing officer shall consider all information in support of or in opposition to the good cause determination presented by the interested parties, including all objections and responses and supporting evidence. The hearing officer shall determine if good cause exists for permitting the untimely appeal or excusing the failure to appear or excusing the untimely request for a new hearing based on the evidence presented. However, if the hearing officer does not find the facts to be different than those already considered, the hearing officer shall not disturb the prior determination of good cause, and the hearing will proceed on the merits of the issues in dispute. If good cause is overturned, the hearing will be terminated and any previously vacated hearing officer's decision on the merits of the appeal shall be reinstated.