Colorado § 16-11.7-106 - Sex offender evaluation, treatment, and polygraph services - contracts with providers - placement on provider list - grievances - fund created - repeal.

§ 16-11.7-106. Sex offender evaluation, treatment, and polygraph services - contracts with providers - placement on provider list - grievances - fund created - repeal.

(1) The department of corrections, the judicial department, the division of criminal justice in the department of public safety, or the department of human services shall not employ or contract with, and shall not allow an adult sex offender or a juvenile who has committed a sexual offense to employ or contract with, an individual or entity to provide sex-offender-specific evaluation, treatment, or polygraph services pursuant to this article unless the sex-offender-specific evaluation, treatment, or polygraph services to be provided by the individual or entity conform with the guidelines and standards developed pursuant to section 16-11.7-103, and the name of the individual providing services is on the list created pursuant to paragraph (b) of subsection (2) of this section of persons who may provide sex-offender-specific services.

(1.5) (a) Notwithstanding the provisions of subsection (1) of this section, the department of corrections may employ or contract with an individual or entity to provide sex-offender-specific evaluation, treatment, or polygraph services pursuant to this article 11.7 if the director of the program is an approved provider and the department operates a sex offender treatment and monitoring program that conforms with the guidelines and standards developed pursuant to section 16-11.7-103 and the employees and contractors are trained to comply with the standards of the conforming program.

(b) Any individual providing sex-offender-specific evaluation or treatment must have a baccalaureate degree or above in a behavioral science with training or professional experience in counseling or therapy; must hold a professional mental health license or be approved by the department of regulatory agencies as an unlicensed psychotherapist, certified addiction counselor, licensed professional counselor candidate, licensed marriage and family therapist candidate, or psychologist candidate; or clinical social worker.

(c) Any polygraph examiner must have graduated from an accredited American polygraph association school and have a baccalaureate degree from a four-year institution of higher education. The department of corrections shall complete compliance monitoring of contracted providers and polygraph examiners who are not approved by the board pursuant to subsection (1) of this section on an annual basis.

(d) In the event that a provider who contracted with the department of corrections is found to have violated the guidelines and standards developed pursuant to section 16-11.7-103, the department of corrections shall terminate the contract with the provider.

(e) This subsection (1.5) is repealed, effective September 1, 2028. Prior to repeal, this subsection (1.5) is scheduled for review in accordance with section 16-11.7-103 (6).

(2) (a) The board shall develop an application and review process for treatment providers, evaluators, and polygraph examiners who provide services pursuant to this article 11.7 to adult sex offenders and to juveniles who have committed sexual offenses. The application and review process must allow providers to demonstrate that they are in compliance with the standards adopted pursuant to this article 11.7. The application and review process consists of the following three parts:

(I) The board shall develop separate application and review processes for standards that apply to the criminal justice component, such as criminal history record checks, for evaluators, individual treatment providers, and polygraph examiners. Applications for the criminal justice components, excluding fingerprints, must be submitted to the board. The division of criminal justice in the department of public safety shall work with a third-party vendor to take and forward fingerprints to the Colorado bureau of investigation for use in conducting a state criminal history record check and for transmittal to the federal bureau of investigation for a national criminal history record check. The board may use information obtained from the state and national criminal history record checks to determine an applicant's eligibility for placement on the approved provider list. The board is responsible for the implementation of this subsection (2)(a)(I).

(II) The board shall develop an application and review process for the verification of the qualifications and credentials of evaluators, treatment providers, and polygraph examiners.

(III) The board shall require a person who applies for placement, including a person who applies for continued placement, on the list of persons who may provide sex-offender-specific evaluation, treatment, and polygraph services pursuant to this article to submit to a current background investigation that goes beyond the scope of the criminal history record check described in subparagraph (I) of this paragraph (a). In conducting the current background investigation required by this subparagraph (III), the board shall obtain reference and criminal history information and recommendations that may be relevant to the applicant's fitness to provide sex-offender-specific evaluation, treatment, and polygraph services pursuant to this article.

(b) After the process developed pursuant to subsection (2)(a) of this section is established and providers have met all the criteria of the application and review process, the board may approve the provider. The board shall publish, at least annually, a list of approved providers. The board shall forward the list to the office of the state court administrator, the department of public safety, the department of human services, and the department of corrections. The board shall update and forward the list of approved providers as necessary.

(3) The board shall use the information obtained from the state and national criminal history record checks and the current background investigation in determining whether to place or continue the placement of a person on the approved provider list.

(4) The board may determine the requirements for an evaluator's, treatment provider's, or polygraph examiner's name to be placed on the approved provider list after his or her name has been removed from the list for any reason.

(5) The board shall develop a renewal process for the continued placement of a person on the approved provider list published pursuant to paragraph (b) of subsection (2) of this section.

(6) The board may assess a fee to an applicant for placement on the approved provider list. The fee shall not exceed one hundred twenty-five dollars per application to cover the costs of conducting a current background investigation required by subsection (2) of this section. All moneys collected pursuant to this subsection (6) shall be transmitted to the state treasurer, who shall credit the same to the sex offender treatment provider fund, which fund is hereby created and referred to in this subsection (6) as the "fund". The moneys in the fund shall be subject to annual appropriation by the general assembly to the division of criminal justice in the department of public safety for the direct and indirect costs associated with the current background investigation required by subsection (2) of this section. Any moneys in the fund not expended for the purpose of subsection (2) of this section may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund.

(7) (a) The board shall notify the department of regulatory agencies of the receipt of any complaints or grievances against an individual who provides sex-offender-specific treatment or evaluation services pursuant to this article 11.7 and advise the department of any disciplinary action taken pursuant to subsection (7)(b) of this section. The department of regulatory agencies or the appropriate board, pursuant to article 245 of title 12 and referred to in this subsection (7) as the "DORA board", shall notify the board of the receipt of any complaint or grievance against a provider who provides sex-offender-specific treatment or evaluation services pursuant to this article 11.7, if the complaint or grievance was not referred by the board, and advise the board of any disciplinary action taken against the individual pursuant to any professional licensing act.

(b) The board shall review and investigate all complaints and grievances concerning compliance with its standards against individuals who provide sex-offender-specific treatment, evaluation, or polygraph services pursuant to this article. Notwithstanding any action taken by the department of regulatory agencies or the DORA board, the board may take appropriate disciplinary action, as permitted by law, against an individual who provides sex-offender-specific treatment, evaluation, or polygraph services pursuant to this article. The disciplinary action may include, but need not be limited to, the removal of the individual's name from the list of persons who may provide sex offender evaluation, treatment, or polygraph services pursuant to this article.

(c) (I) Nothing in this subsection (7) limits the rights or responsibilities of the department of regulatory agencies or the DORA board with respect to the investigation and resolution of complaints pursuant to article 245 of title 12.

(II) Nothing in this subsection (7) limits the rights or responsibilities of the board with respect to the addition or removal of an individual's name from the list of persons who may provide sex offender evaluation, treatment, or polygraph services pursuant to this article.

(8) Supervising officers shall follow the guidelines and standards developed pursuant to this section when working with sex offenders. Agencies employing supervising officers shall collaborate with the board to develop procedures to hold accountable a supervising officer who fails to follow the guidelines and standards.

Source: L. 92: Entire article added, p. 461, § 3, effective June 2. L. 94: Entire section amended, p. 2652, § 127, effective July 1. L. 95: Entire section amended, p. 468, § 15, effective July 1. L. 99: Entire section amended, p. 1151, § 16, effective July 1. L. 2000: Entire section amended, p. 926, § 21, effective July 1. L. 2004: (2) amended, p. 813, § 1, effective July 1. L. 2011: Entire section R&RE, (HB 11-1138), ch. 236, p. 1023, § 6, effective May 27. L. 2016: (7) R&RE, (HB 16-1345), ch. 347, p. 1416, § 3, effective August 10. L. 2019: (7)(a) and (7)(c)(I) amended, (HB 19-1172), ch. 136, p. 1672, § 85, effective October 1. L. 2023: (1.5) and (8) added and IP(2)(a), (2)(a)(I), and (2)(b) amended, (SB 23-164), ch. 349, p. 2093, § 6, effective June 5.

Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994.

ANNOTATION

Requiring a sex offender as a condition of his supervised release to successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer questions regarding whether he had committed sexual crimes for which he was never charged violated his fifth amendment privilege against self-incrimination. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

Because the answers to the mandatory questions could focus an investigation on the offender and also because his confession to the past crimes could potentially be used against him at trial, the offender faces at least some authentic danger of self-incrimination by answering some of the questions in the polygraph. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

The government's threat to revoke an offender's supervised release for his failure to answer potentially incriminating questions rises to the level of unconstitutional compulsion. A threat to revoke one's probation for properly invoking one's fifth amendment privilege is the type of compulsion the state may not constitutionally impose. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).