, Colorado Revised Statutes Findings and Conclusions Retail Food Establishment Regulation, Fees, Investigations, Stakeholder Process

Transcription

1 , Colorado Revised Statutes Findings and Conclusions Retail Food Establishment Regulation, Fees, Investigations, Stakeholder Process November 30, 2018

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3 Executive Summary Colorado Revised Statute (C.R.S.), , requires the Colorado Department of Public Health and Environment (CDPHE) to convene a stakeholder group at least once every three years to study retail food establishments, retail food establishment fees, and retail food inspection programs. The findings and conclusions of the retail food study must be presented in a report prepared by CDPHE for all stakeholders and others upon request. This report and executive summary are provided pursuant to (5) C.R.S. This was the second stakeholder process initiated pursuant to the requirements established by HB The initial stakeholder process in 2015 focused on several key program issues that had been raised during legislative stakeholder discussions. These areas included: 1. Fee increases; 2. Communication of inspection results to the public; 3. Uniform application of the rules and regulations and the Colorado s Food Protection Act; 4. Efficient utilization of resources, and; 5. Modifications to the enforcement requirements established in statute. The results of the initial stakeholder process was HB This law covered four of the five areas identified as key areas of focus from the initial stakeholder group. What remained was evaluating the current enforcement laws, policies and procedures and, if necessary, develop a proposal for changes. CDPHE initiated the second stakeholder process by convening stakeholders via a conference call on May 16, The outcome of that call was to focus the program review cycle on modifying the enforcement requirements that are established in statute. Stakeholders met four times; July 31, 2018, August 30, 2018, September 28, 2018, and November 14, During the meeting in July, stakeholders agreed that any changes to the enforcement protocols would focus on six areas: Target food risk factors and the severity and prevalence of those noncompliance conditions observed during an inspection; Assess a facility s overall compliance versus individual violations; Provide LPHAs and the department a process to address issues of significant noncompliance in a timely manner that is protective of public health; Align approaches to determine when an imminent health hazard exists and ensures a uniform administration of the enforcement statutes, policies and requirements; Provides due process for the program s industry partners; and, Avoid incentives for issuing fines or penalties. Based on these desires, CDPHE developed proposals for the stakeholders to review during subsequent meetings. The result was consensus on draft legislation that the Colorado Restaurant Association, other industry members and the Colorado Association of Local Public Health Officials supported. While not determined as of the date of this final 2018 report, it is anticipated that a bill will be introduced during the 2019 legislative session that will have comprehensive stakeholder support. Executive Summary

4 Reporting Requirement Colorado Revised Statute (C.R.S.), , requires the Colorado Department of Public Health and Environment (CDPHE) to convene a stakeholder group at least once every three years to study retail food establishments, retail food establishment fees, and retail food inspection programs. The stakeholder process must include representatives from Colorado associations representing county or district public health agencies, county commissioners, retail food establishments, and any other party that represents a retail food establishment and expresses interest in participating. The findings and conclusions of the retail food study must be presented in a report prepared by CDPHE for all stakeholders and others upon request. This report is provided pursuant to (5) C.R.S Stakeholder Process Section (1) C.R.S. requires the executive director of the Colorado Department of Public Health and Environment or his or her designee to convene a stakeholder group. Jeff Lawrence, Director of the Division of Environmental Health and Sustainability (DEHS), has been designated to convene the stakeholder process for Stakeholder List Section (2) C.R.S. requires the department to keep and maintain a list of stakeholders. Stakeholders for the 2018 process were identified as follows (information was provided to all stakeholders, not all stakeholders participated in meetings): Alamosa County Commissioners Boulder County Public Health CDPHE Division of Environmental Health and Sustainability CDPHE Disease Control and Environmental Epidemiology Division (DCEED) CDPHE Office of Planning & Performance Improvement (OPPI) Colorado Association of Local Public Health Officials (CALPHO) Colorado Bar Owners Assoc. Colorado Brewers Guild Colorado Counties Inc. (CCI) Colorado Department of Public Health and Environment (CDPHE) Colorado Directors of Environmental Health (CDEH) Colorado House District 13 Colorado Hotel & Lodging Assoc. (CH&LA) Colorado Licensed Beverage Assoc. (CLBA) Colorado Restaurant Association (CRA) Colorado Retail Council Colorado School Nutrition Association Colorado Wyoming Petroleum Marketers Association (CWPMA) CSU Extension Service CSU Environmental Health Frontline Public Affairs Garfield County Public Health Hicks & Associates Hudson Government Affairs Larimer County Commissioners Montrose County Public Health Natural Grocers Pitkin County Commissioners Pitkin County Environmental Health Red Robin Rocky Mountain Food Industry Assoc. (RMFIA) Tavern League of Colorado Tri-County Health Department Weld County Commissioners Weld County Public Health Department Page 1 of 6

5 Stakeholder Meeting Dates Section (3) C.R.S. requires the department to convene the first meeting with stakeholders no later than June 15, All meetings provided remote access for those stakeholders would could not attend in person. Meetings were convened at CDPHE on the following dates: May 16, 2018 July 31, 2018 August 30, 2018 September 28, 2018 November 14, Retail Food Program Study Section (4) C.R.S. requires the department to meet with stakeholders to study retail food establishments, retail food establishment license fees, and retail food inspection programs. 4.1 Food-borne Illness Pursuant to Section (4)(a) C.R.S., the program study included research into incidents of, and trends in, food-borne illnesses, including the correlation to inspections. Stakeholder discussion indicated no specific concerns within this area at this time. 4.2 Uniformity Pursuant to Section (4)(b) C.R.S., the program study included research into the uniform statewide administration, implementation, interpretation, and enforcement of the retail food inspection program to include training, application, communication to the public, guidance documents, inspection frequency and compliance strategies. Stakeholder discussion indicated no specific concerns within this area at this time Training Pursuant to Section (4)(b)(I) C.R.S., the program study included research into training for inspectors and industry. Stakeholder discussion indicated no specific concerns within this area at this time, but desired on-going conversation and evaluation of this topic during the next triennial review to assure compliance with Section , C.R.S Application Pursuant to Section (4)(b)(II) C.R.S., the program study included research into application of the regulations. Stakeholder discussion indicated no specific concerns within this area at this time, but desired on-going conversations to ensure a consistent approach by state and local authorities with regards to application of the regulations. Page 2 of 6

6 Communication to the Public Pursuant to Section (4)(b)(III) C.R.S., the program study included discussion of communicating inspection results to the public. Stakeholders expressed a desire to assure connection between communication of inspection results (i.e. ratings ) and proposed changes to the enforcement process for non-compliant establishments. Implementation of a revised uniform rating system has been postponed to allow for the implementation of new retail food establishment regulations on January 1, Stakeholders expressed a strong desire to include consumer feedback regarding final revisions to the communication system after January 1, Stakeholders expressed a specific desire to assure that any proposed updates to enforcement procedures not create a conflict with the current or future rating systems used in Colorado Guidance Documents Pursuant to Section (4)(b)(IV) C.R.S., the program study included research into guidance documents needed to uniformly implement the retail food program. Stakeholder discussion indicated no specific concerns within this area at this time Inspection Frequency and Compliance Strategies Pursuant to Section (4)(b)(V) C.R.S., the program study included research on inspection frequency and compliance strategies being used by the retail food program. Stakeholder discussion indicated no specific concerns within this area at this time, but desired on-going conversation and evaluation of this topic during the next triennial review to assure compliance with Section , C.R.S. 4.3 Potential Regulatory Changes Pursuant to Section (4)(c) C.R.S., the program study included research into potential regulatory changes. The Colorado Retail Food Establishment Rules and Regulations were revised on November 15, 2017, with an effective date of January 1, The department, local public health agencies and industry partners have collaborated extensively during 2018 to prepare and train for this regulation revision. Stakeholder discussion indicated no specific concerns within this area at this time. 4.4 Collaboration with Industry Pursuant to Section (4)(d) C.R.S., the program study included research into collaboration with the retail food industry. Stakeholder discussion indicated no specific concerns within this area at this time, but desired on-going conversations between industry partners, CDPHE and local public health agencies. 4.5 Annual License Fee Adjustment Pursuant to Section (4)(e) C.R.S., the program study included research regarding inspection workload, costs for inspections, and program funding shortfalls. Stakeholder discussion indicated no specific concerns within this area at this time. Page 3 of 6

7 4.6 Annual License Fee for Schools and Non-Profits Pursuant to Section (4)(f) C.R.S., the program study included evaluation of annual license fees charged for parochial, public, or private schools; charitable organizations and benevolent, non-profit retail food establishments that assist elderly, incapacitated, or disadvantaged persons; and non-profit or charitable organizations that donate, prepare, sell, or serve food in conjunction with an event or celebration. Stakeholder discussion indicated no specific concerns within this area at this time. 4.7 Alternative Administrative Actions Pursuant to Section (4)(g) C.R.S., the program study included evaluating alternative administrative actions to achieve or assure compliance. There was consensus within the group regarding the need to re-evaluate the current statutory requirements around compliance assurance, enforcement, and penalties, including the possibility of revising the associated statutory language. The stakeholders focused on this study during the entirety of the triennial review, evaluating the current enforcement laws, policies and procedures with substantive discussion about the resources consumed as a result of the current civil penalty process. During the meeting on July 31, 2018, stakeholders agreed that any changes to the enforcement protocols should focus on six areas, including: Target food risk factors and the severity and prevalence of those noncompliance conditions observed during an inspection; Assess a facility s overall compliance versus individual violations; Provide LPHAs and the department a process to address issues of significant noncompliance in a timely manner that is protective of public health; Align approaches to determine when an imminent health hazard exists and ensures a uniform administration of the enforcement statutes, policies and requirements; Provides due process for the program s industry partners; and, Does not incentives fines or penalties. On August 30, 2018, stakeholders discussed how to incorporate desired changes into statute, regulations and policies. The following revision targets were identified: Clarify definition of imminent health hazard and ensure that immediate action can be taken at retail food establishments with imminent health hazards present; Align requirement to maintain the uniform system to communicate inspection results to the public with the triennial stakeholder process; Assure due process; Identify the conditions that cause a retail food establishment to need a re-inspection; Limit number of re-inspections; and, Avoid incentives for issuing fines or penalties. Based on these discussions, potential statutory revision concepts were evaluated by stakeholders during the meeting on September 28, 2018, and finalized during the meeting on November 14, The revisions discussed included: Proposed amendment to expand the definition of imminent health hazard for clarity and ease of use. Page 4 of 6

8 Proposed addition of statutory language to require that after January 1, 2020, the system developed and approved by the department to communicate inspection results be revised through the triennial stakeholder process required by section Proposed amendment to replace existing civil penalty process on January 1, 2020 and move all statutory language about the civil penalty process to a new statutory section for clarity and ease of use. The new civil penalty process would require that a license cannot be suspended until three re-inspections have been completed and also include a requirement to notify operators of the grievance process and its availability. Proposed addition of statutory language to require that determination of whether violations are sufficient to require re-inspection be consistent with the uniform system to communicate inspection results to the public developed in section C.R.S. Proposed new statutory language to replace the existing civil penalty process on January 1, 2020 and allow for fines up to $1,000 and the suspension of a license for up to three days if a retail food establishment requires three consecutive (or four out of five) reinspections in 12 months. Fines cannot be collected until the third re-inspection. Maintain the current statutory allowance for the owner of a retail food establishment to use any fines assessed to pay for unpaid license fees, employee training, or the cost of needed improvements to the establishment. 4.8 Current Annual License Fee Categories Pursuant to Section (4)(h) C.R.S., the program study included research and evaluation of the current annual license fee structure and licensing categories. Stakeholder discussion indicated no specific concerns within this area at this time. 4.9 Review of Risk-Based Inspection Schedules Pursuant to Section (4)(i) C.R.S., the program study included evaluating information on risk-based inspection schedules. Stakeholder discussion indicated no specific concerns within this area at this time Actual Cost of Inspections Pursuant to Section (4)(j) C.R.S., the program study included evaluation of the actual cost of inspections and a uniform retail food program. Stakeholder discussion indicated no specific concerns within this area at this time. 5. Summary The 2018 retail food program review stakeholder process brought together representatives from the retail food industry, local government officials, and state and local public health officials to study Colorado s retail food program. This was the second stakeholder process initiated pursuant to the requirements established by Colorado Revised Statute section CDPHE convened stakeholders via a conference call on May 16, The outcome of the May 16, 2018 call was to focus this program review cycle on modifying the enforcement procedures established in statute. Stakeholders subsequently convened on July 31, 2018, August 30, 2018, September 28, 2018, and November 14, During the meeting on July 31, 2018, stakeholders agreed that any changes to the enforcement protocols should focus on six areas, including: Target food risk factors and the severity and prevalence of those noncompliance Page 5 of 6

9 conditions observed during an inspection; Assess a facility s overall compliance versus individual violations; Provide LPHAs and the department a process to address issues of significant noncompliance in a timely manner that is protective of public health; Align approaches to determine when an imminent health hazard exists and ensures a uniform administration of the enforcement statutes, policies and requirements; Provides due process for the program s industry partners; and, Avoid incentives for issuing fines or penalties. Based on these desires, CDPHE developed proposals for the stakeholders to review during the August 30, 2018, September 28, 2018, and November 14, 2018 meetings. Based on these reviews, proposed legislative amendments were considered that addressed the six identified areas of focus and that did not create conflicts with the current or future statewide system for communicating inspection results. Stakeholders expressed a desire to assure connection between communication of inspection results (i.e. ratings ) and proposed changes to the enforcement process for non-compliant establishments. Implementation of a revised uniform rating system has been postponed to allow for the implementation of new retail food regulations on January 1, Stakeholders expressed a strong desire to include consumer feedback regarding final revisions to the communication system after January 1, To address this desire, proposed legislative amendments included provisions to ensure that changes to the statewide system for communicating inspection results occur via the triennial retail food program review. The result of the program review and stakeholder meetings was consensus on proposed legislative amendments that CDPHE, the Colorado Restaurant Association, other industry members and the Colorado Association of Local Public Health Officials supported. While not determined as of the date of this final 2018 report, it is anticipated that a bill will be introduced during the 2019 legislative session that will have comprehensive stakeholder support. Page 6 of 6