How to Challenge a Deficiency or Immediate Jeopardy Citation in Colorado Assisted Living
Assisted living providers in Colorado continue to play an essential role in supporting older adults and their families. The work is demanding, meaningful, and deeply personal, yet the regulatory environment can add stress, especially when the Colorado Department of Public Health and Environment (CDPHE) issues a deficiency that the provider believes is inaccurate or unfair. While surveyors generally act with good intentions, they sometimes reach conclusions that do not reflect the facts or the law. When that happens, providers have the right to challenge the findings.
Understanding Deficiencies in Colorado Assisted Living
When CDPHE surveyors observe conditions they believe do not meet regulatory requirements, they issue a deficiency. Each deficiency is assigned a harm level under 6 CCR 1011-1, Chapter 7, Section 3.11:
Level A: Isolated potential for harm
Level B: Pattern of potential harm
Level C: Isolated actual harm
Level D: Pattern of actual harm
Level E: Immediate Jeopardy, meaning actual or potential for serious injury or harm
Most deficiencies relate to documentation, medication management, staff training, or environmental issues. These can be appealed, but they do not usually involve penalties. Level E citations, however, present a far more serious challenge.
Why Immediate Jeopardy Findings Matter More Than Ever
A Level E Immediate Jeopardy citation is the most serious regulatory finding and brings immediate consequences. Providers may face:
• Fines
• Conditions or restrictions on their assisted living license
• Increases in liability and professional insurance premiums
• Public reporting that may affect referrals and occupancy
Because of the severity and long term consequences, many providers choose to challenge Level E findings.
The Two Step Path to Challenge a Deficiency
1. Informal Dispute Resolution (IDR)
The first optional step is CDPHE’s Informal Dispute Resolution process. Although some providers pursue IDRs, many express frustration that the Department rarely overturns its own findings. For that reason, some providers choose to skip the IDR and move directly to appeal. If a provider does complete an IDR and it is unsuccessful, the next step is a formal appeal.
2. Appeal to the Colorado Office of Administrative Courts
To appeal, the provider must file a written request within 30 days of receiving CDPHE’s written notice, which is usually delivered by email. The appeal request must describe the facts and identify the issues the provider wants the court to decide. While it is possible to file without an attorney, using legal counsel is strongly recommended because the issues outlined in the appeal request will define the entire scope of the case.
What to Expect After Filing an Appeal
After the appeal is filed, the Office of Administrative Courts will schedule a hearing. At present, hearings are often set 12 months or more into the future due to high caseloads. Before the hearing occurs, both sides have the opportunity to participate in discovery, including written questions, document requests, and depositions. As more information becomes available, both parties may consider settling the matter or continuing forward to a full hearing.
At the hearing, CDPHE must prove that the deficiency occurred and that the assigned harm level is appropriate. Providers must be prepared to present witnesses, evidence, and testimony to challenge the Department’s conclusions.
If the administrative law judge rules in favor of CDPHE, the finding is upheld and the associated fines or conditions remain in place. The provider may then appeal to district court. If the judge rules in favor of the provider, the deficiency is overturned unless CDPHE elects to appeal further.
Final Thoughts
Colorado’s assisted living regulatory system continues to evolve, and providers are experiencing more frequent surveys, increased enforcement activity, and more Level E citations. Understanding the process and your rights is essential, and early action can make a significant difference.
This article is provided for general informational purposes only and is not legal advice. If you would like to discuss how an appeal may work in your specific case, please contact your attorney or reach out to us directly.
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This article is meant to inform and empower, but it is not legal advice for any individual case. Every situation is different, and we encourage you to consult your attorney or contact us if you’d like to explore how the law applies to your circumstances.
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Brian is an attorney with Pinkowski Law & Policy Group, LLC, where his work centers on public health, environmental issues, and organizational governance. He is also President of the Residential Assisted Living National Association, representing more than 40,000 members and working with the Colorado Assisted Living Association to promote excellence in assisted living care.
This article is written for informational purposes only, and is not legal advice for your specific situation, but we hope it helps you understand your rights and legal options. Contact your attorney or us if you would like to discuss how the appeal process might work for you.