February 20, 2018

Archives for April 9, 2012

Governor Hickenlooper Signs Fifteen More Bills Into Law

Governor Hickenlooper has signed 111 bills into law this legislative session, including fourteen bills that he signed on Friday, April 6, and one on April 9, 2012. A complete list of the bills he signed Friday can be found here. Five of these bills are highlighted below.

  • HB 12-1181Concerning a Supplemental Appropriation to the Department of Corrections
    Sponsored by Rep. Cheri Gerou and Sen. Mary Hodge. This Joint Budget Committee bill changes the appropriations to the Department of Corrections for several services. This was one of three bills from the Joint Budget Committee to be signed by the governor on April 6.
  • HB 12-1229Concerning Publication Requirements for a Newspaper In Which a Legal Notice or Advertisement is Printed
    Sponsored by Rep. Carole Murray and Sen. Mark Scheffel. The bill creates a definition for “published” for legal notices that are required to be published in legally recognized newspapers, and creates a contingency for counties that do not have a newspaper.
  • HB 12-1269Concerning the Threshold Amount of Campaign Activity By a Candidate Committee In Connection With a Special District Election that Triggers Disclosure Requirements Under the “Fair Campaign Practices Act.”
    Sponsored by Rep. Jim Kerr and Sen. Ellen Roberts. This bill increases the amount that a candidate committee in a special district election must spend in order to trigger reporting requirements under the FCPA.
  • HB 12-1285Concerning Modifications to Statutory Provisions Governing Intergovernmental Cooperation to Address Wildland Fire Mitigation Where a Municipality Owns Land Inside a County for Utility Purposes
    Sponsored by Rep. Cheri Gerou and Sen. Cheri Jahn. The bill requires municipalities that own land for utility purposes inside a county but outside the municipal boundaries to enter into an Intergovernmental Agreement with the county or the Colorado State Forest Service in order to mitigate wildfires.
  • SB 12-066Concerning Expanding Those Persons Eligible as Guardians in the Guardianship Assistance Program to Include Persons Ascribed By the Family as Having a Family-Like Relationship With the Child
    Sponsored by Sen. Jeanne Nicholson and Rep. Bob Gardner. The bill allows non-family members to receive guardianship assistance if they are guardians and foster parents of a child and are committed to the child’s permanency.

Additionally, on Monday, April 9, Governor Hickenlooper signed HB 12 -1295 “Colorado Rockies Vehicle License Plate,” sponsored by Rep. Kevin Priola and Sen. Lois Tochtrop. The governor signed the bill into law at Coors Field before the Colorado Rockies home opener. The bill creates a specialty license plate for the Colorado Rockies that benefits the Colorado Rockies Baseball Club Foundation.

For a complete list of legislation signed into law by Governor Hickenlooper on April 6, 2012, click here.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

HB 12-1299: Specifies that Innovative Tax Credit for Environmentally Friendly Motor Vehicles Applicable to Motor Vehicle Lessees, Not Lessors

On February 13, 2012, Rep. Jonathan Singer and Sen. Brandon Shaffer introduced HB 12-1299 – Concerning the Specification that a Motor Vehicle Lessee Is Entitled to Claim the Innovative Motor Vehicle Tax Credit. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For income tax years commencing on or after January 1, 2012, the bill specifies that it is the motor vehicle lessee, not the lessor, that is entitled to claim the innovative motor vehicle tax credit. The bill has cleared both houses and now heads to the Governor’s desk for action.

Summaries of other featured bills can be found here.

SB 12-167: Authorizing State Institutions of Higher Education to Establish Student Health Trusts for Student Health Insurance Plans

On March 30, 2012, Sen. Rollie Heath and Rep. Dan Pabon introduced SB 12-164 – Concerning the Authority of State Institutions of Higher Education Regarding Student Health Trusts. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill authorizes state institutions of higher education to establish student health trusts for self-funded health plans established by the institutions to provide health benefits to students and their eligible dependents. It exempts the trusts and self-funded plans from the state insurance regulations but requires reports to be filed with, and authorizes examinations by, the commissioner of insurance. Introduced on March 30, the bill is assigned to the Education Committee.

Summaries of other featured bills can be found here.

SB 12-164: Private Colleges in Colorado to be Regulated by the Colorado Commission on Higher Education; New Regulations for Oversight of Private Colleges

On March 23, 2012, Sen. Rollie Heath and Rep. Tom Massey introduced SB 12-164 – Concerning the Operation of Private Postsecondary Institutions in Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes several changes to the existing statutes concerning authorization of private colleges and universities and seminaries and bible colleges in the state, including changing the term “bible college” to “religious training institution.” The changes generally clarify the types of institutions that are subject to authorization and specifically require the Colorado commission on higher education and the department of higher education to set procedures for authorizing, renewing, and revoking the authorizations for private institutions. The commission must also set the amount of the fees that a private institution pays for the administration of the authorization process, including a separate fee if a private institution seeks approval of an educator preparation program. Each private institution must also report specified student information.

Each private institution must obtain authorization for each campus, branch, or site that is separately accredited and operates in Colorado. Authorizations for private colleges and universities are based on the institution’s accreditation and are subject to renewal every 3 years or on the same schedule that applies for renewing the institution’s accreditation, whichever is longer. Authorizations for seminaries and religious training institutions are based on whether the institution continues to meet the definition for seminary or religious training institution. The bill clarifies the process and standards for renewing authorizations and the conditions and procedures under which the commission may revoke a private institution’s authorization or place the authorization on probationary status.

Under current law, a private institution that ceases operations must tell the department where it will store its records. The bill requires the private institution to turn its records over to the department, authorizes the commission to seek a court order to seize the records in certain circumstances, and makes the records subject to the open records statutes. The department must keep the records for specified periods.

Private colleges or universities that meet specified criteria are not required to file a surety or to otherwise demonstrate financial integrity. Each private college or university that does not meet the criteria must demonstrate financial integrity based on evidence that it meets other criteria. If the private college or university cannot demonstrate financial integrity, it must post surety in a specified amount, which surety may be in the form of a bond, that the commission can use to reimburse students for a loss of tuition or fees or to provide services if the institution ceases to operate in Colorado or a student files a claim against the institution. If a private college or university that does not post surety ceases operations in the state, the attorney general may file a claim on behalf of students to recover any unearned, prepaid tuition.

The department must maintain a list of authorized private institutions and establish a process for reviewing and acting on complaints against a private institution. The commission may negotiate reciprocal agreements with other states to assist in implementing authorizations for private institutions.

The bill changes the terms of members appointed to the private occupational schools board so that fewer members will be appointed at one time. The current law authorizes a student enrolled in a private occupational school to file with the board a complaint against the school. Under the bill, the student must first exhaust any complaint procedures that the school has in place. Introduced on March 23, the bill is assigned to the Education Committee.

Summaries of other featured bills can be found here.

HB 12-1305: Altering the Rate of Pre-Judgment Interest Paid in Personal Injury Cases

On February 15, 2012, Rep. Bob Gardner and Sen. Steve King introduced HB 12-1305 – Concerning Statutory Rates of Interest. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, if no interest rate is specified, creditors are entitled to receive interest at a rate of 8% per annum compounded annually. The bill changes the statutory interest rate to a rate equal to 2 percentage points above the discount rate that the federal reserve bank of Kansas City charges commercial banks as of January 2 of the year in which the moneys become due. The Secretary of state will certify the interest rate each January 2.

Currently, the secretary of state certifies the interest rate for judgments that are appealed and for damages for personal injuries on December 31 for the following year. The bill changes the date of certification to January 2 for each year. The bill clarifies language on interest recoverable for damages in a personal injury action. On March 28 the bill was defeated on 3rd Reading on the floor of the House.

Summaries of other featured bills can be found here.

Colorado Supreme Court: Priority Rule May Not Be Applied to Municipal Annexation Proceedings Because They Are a Legislative Function

The Colorado Supreme Court issued its opinion in Town of Minturn v. Sensible Housing Co. on April 9, 2012.

Priority of Jurisdiction—Annexation—CRS § 31-12-116—Judicial Review of Annexation Proceedings.

The Supreme Court reversed the judgment of the court of appeals, holding that the priority rule may not be applied to municipal annexation proceedings because those proceedings are a legislative function. The priority rule states that, where two courts may exercise jurisdiction over the same parties and subject matter, the second action should be stayed until the first action has been determined.

In 2008, the Town of Minturn annexed nine parcels of property for which the parties petitioning for annexation claimed 100% ownership. Sensible Housing Co., Inc. (Sensible) petitioned for judicial review of the annexation proceedings under CRS § 31-12-116, claiming that, due to an ongoing quiet title dispute regarding two of the annexed parcels, Minturn’s annexation was improper. The court of appeals reversed a district court order dismissing Sensible’s judicial review action and voided the annexation, reasoning that Minturn should not have adopted its annexation ordinances pending the outcome of the quiet title litigation.

The Court concluded that the priority rule may not be applied to void Minturn’s annexation ordinances because annexations are legislative in nature. Such application is inconsistent with the purpose of the priority rule and the proper judicial and legislative roles in annexation proceedings. Because judicial review of the annexation proceedings commenced after the quiet title litigation and both actions involved the same parties and subject matter, the Court held that the proper remedy here was to stay judicial review of the annexation proceedings pending the outcome of the quiet title litigation. The case is remanded to the district court.

Summary and full case available here.

Tenth Circuit: No Violation of FMLA; Decision to Eliminate Position Made Before Leave Was Sought and Petitioner Fired for Insubordination

The Tenth Circuit Court of Appeals published its opinion in Sabourin v. University of Utah on Friday, April 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner sued the University of Utah, “claiming that it had violated the Family and Medical Leave Act by deciding to eliminate his position and then firing him for cause while he was on leave for childcare in June 2006. The district court granted the University summary judgment” and Petitioner appealed.

The Court determined that all of Petitioner’s claims must fail “because the undisputed facts show that the University’s adverse decisions were not based on [Petitioner]’s taking FMLA leave. The decision to eliminate his position was made before he sought FMLA leave; and he was fired for engaging in a course of insubordination.”

Tenth Circuit: Unpublished Opinions, 4/6/12

On Friday, April 6, 2012, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Unpublished

Trujillo v. Ploughe

Whitney v. Div. of Juvenile Justice Services

Neal v. Davis

Allen v. Reynolds

United States v. Luevano-Sanchez

Elledge v. Attorney General of Oklahoma

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 12-1304: Including Intentionally Activating a Fire Alarm or Preventing One from Sounding to Disorderly Conduct

On February 15, 2012, Rep. Mark Barker and Sen. Linda Newell introduced HB 12-1304 – Concerning Measures to Prevent Organized Retail Theft. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

If a person causes a fire or exit alarm to go off or deactivates an alarm, that conduct is an act of disorderly conduct and will be penalized as a class 2 misdemeanor. The definition of a “theft detection deactivating device” and “theft detection shielding device” are expanded. The bill has passed the House and the Senate Business, Labor, and Technology Committee in the Senate has amended the bill and moved it to the floor of the Senate for consideration on 2nd Reading.

Since this summary, the Second Reading was laid over daily on April 4.

Summaries of other featured bills can be found here.

HB 12-1297: Extending the Sunset of the Committee on Anti-Competitive Conduct for Physicians

On February 13, 2012, Rep. Bob Gardner and Sen. Lois Tochtrop introduced HB 12-1297 – Concerning the Committee on Anticompetitive Conduct, and, In Connection Therewith, Continuing the Committee’s Statutory Authorization Until September 1, 2013. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Sunset Process – House Judiciary Committee.

The bill extends the statutory authorization for the committee on anticompetitive conduct until September 1, 2013, and expresses support for constructive discussion among licensed professionals and other interested parties regarding the proper role, structure, and functions of the committee if it is continued beyond that date. The bill cleared the House on March 27 with amendments. The bill is assigned to the Judiciary Committee in the Senate.

Since this summary, the bill was referred unamended by the Senate Judiciary Committee to the Consent Calendar for the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

HB 12-1295: Creating a Colorado Rockies License Plate

On February 9, 2012, Rep. Kevin Priola and Sen. Lois Tochtrop introduced HB 12-1295 – Concerning the Creation of a Colorado Rockies License Plate, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the Colorado Rockies special license plate. A person becomes eligible to use the plate by donating $52.80 to the Colorado Rockies baseball club foundation. In addition to the normal motor vehicle fees, the plate requires 2 one-time fees of $25. One of the fees is credited to the highway users tax fund and the other to the licensing services cash fund. The bill passed out of the House on March 28. The Senate finance Committee approved the bill on March 29 and sent it to the Appropriations Committee on March 29.

Since this summary, the bill made it through the Appropriations Committee and passed three readings on the Senate floor. It was signed by the Speaker of the House at 4:20 p.m. on April 5 and is now awaiting the governor’s signature.

Summaries of other featured bills can be found here.

HB 12-1294: Eliminating Duplication and Unnecessary Government Oversight of the Regulation of Health Facilities in Colorado

On February 7, 2012, Rep. Larry Liston and Sen. Lois Tochtrop introduced HB 12-1294 – Concerning Modifications to the System of Regulation of Health Facilities Currently Regulated by the Department of Public Health and Environment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the Department of Public Health and Environment (CDPHE) licenses and establishes, and enforces standards for the operation of, health facilities in the state, including rehabilitation centers, community mental health centers, acute treatment units, facilities for persons with developmental disabilities, nursing care facilities, hospice care, assisted living residences, and home care agencies. CDPHE conducts periodic, announced and unannounced inspections of licensed facilities to ensure compliance with the standards it develops. The state board of health is required to establish by rule a schedule of fees to be assessed against health facilities that is sufficient to meet CDPHE’s direct and indirect costs in regulating health facilities.

Additionally, under current law, both CDPHE and the Department of Human services (DHS) jointly regulate community residential homes for persons with developmental disabilities.

The bill declares that the legislative intent of the bill is to eliminate duplication and unnecessary government oversight in the regulation of health facilities in Colorado.

The bill eliminates Colorado Department Public Health & Environment’s authority to license and develop standards for the operation of community residential homes, shifting oversight of these homes solely to DHS. Additionally, if home care agency personal care services, which are otherwise regulated by CDPHE, are provided by a service agency that delivers services and supports to persons with developmental disabilities, DHS is tasked with inspecting those services in conjunction and simultaneously with its inspection of the community residential home. DHS is directed to institute an abbreviated, periodic inspection system for community residential homes and a performance incentive system to reduce license renewal fees for community residential homes for which no significant deficiencies that negatively affect the life, health, and safety of their consumers have been found by DHS. The bill:

  • Requires CDPHE to develop an abbreviated, periodic inspection system, which it must use for health facilities that have been licensed for at least 3 years and have not been subject to any enforcement activity or substantiated complaints resulting in the discovery of significant deficiencies that negatively affect the life, health, or safety of consumers of the facilities within the prior 3 years;
  • Restrict the ability of CDPHE, when considering a license application or a request to approve new construction or remodel of a health facility, to impose standards for construction that are more stringent than, or do not comply with, applicable national, state, and local building and fire codes;
  • With regard to the dual responsibilities of CDPHE and DHS over community mental health centers and acute treatment units, require the departments to consider changes in health care policy and practice that incorporate integrated health care services;
  • Limit CDPHE’s licensure authority over community clinics to those community clinics that: Provide health care services on an ambulatory basis; are not licensed as an on-campus department or service of a hospital or listed as an off-campus location under a hospital’s license; and either operate inpatient beds or provide emergency services at the facility. CDPHE retains authority to license prison clinics regulated by the department of corrections.
  • Require CDPHE to determine an applicant’s fitness to conduct and maintain a health facility based solely on specific fitness information or documentation submitted by the applicant or obtained by CDPHE through its own review or investigation of the applicant; and
  • Eliminate the ability of CDPHE to conduct a fitness review of a new owner of a facility unless the transfer of ownership results in a transfer of at least 50% of direct or indirect ownership interest in the facility or business to one or more new owners.

Under the bill a licensed health facility, program of all-inclusive care for the elderly (PACE) provider, or community residential home that applies to renew its license may submit evidence of its accreditation by a nationally recognized accrediting body or regulation pursuant to a 3-way agreement between the PACE provider, the centers for Medicare and Medicaid services (CMS), and the department of health care policy and financing (HCPF), as applicable, in which case CDPHE or, for purposes of community residential homes, DHS is to deem that accreditation, regulation, or certification as satisfaction of the state licensing requirements. CDPHE or DHS, as applicable, is permitted to request additional information from a facility if the state’s standards for licensure of that type of facility are more stringent than the applicable standards for accreditation, regulation, or certification.

The bill prohibits the board from increasing provisional or full license fees above the levels set in rules as of the effective date of the sections. The board retains the ability to lower the fee amounts. The bill further requires CDPHE to develop a performance incentive system to provide a reduction in license renewal fees for health facilities that have no significant deficiencies that negatively affect the life, health, or safety of consumers of the facility.

The bill establishes the health care industry facility advisory council (advisory council) in CDPHE to advise the department and the board on matters related to state licensure of health care facilities. The purpose of the advisory council is to:

  • Advise CDPHE and the board on proposed standards for the operation of licensed health care facilities;
  • Review and make recommendations to CDPHE and the board on proposed new or amended rules regarding health care facility licensure;
  • Review and make recommendations to CDPHE and the board regarding modifications to licensing fees;
  • Review and make recommendations concerning CDPHE guidelines, policies, and procedures for licensure; and
  • Seek advice and counsel from outside experts when it deems necessary.

CDPHE and the board are required to accept and take the advisory council’s recommendations into consideration before taking action on any of the matters on which the advisory council submits recommendations.

Under the bill, the advisory council is subject to sunset review by the Department of Regulatory Agencies and repeal on September 1, 2022, unless continued by the general assembly.

The bill clarifies that home care placement agencies are not licensed or certified by CDPHE and prohibits home care placement agencies from making such a claim. Noncompliance with this prohibition subjects a home care placement agency to a civil penalty imposed by CDPHE.

For purposes of board rules pertaining to the regulation of home care agencies, the bill requires the board to establish different requirements that are appropriate based on the type of facility or provider delivering the services to the home care consumer and prohibits the board from requiring PACE providers to submit information that is redundant or inconsistent with the federal requirements the PACE provider is subject to pursuant to its 3-way agreement with CMS and HCPF.

The bill prohibits an appropriation of state funds to implement the bill.

On March 22 the Health and Environment Committee amended the bill and moved it to the full House for consideration on 2nd Reading.

Summaries of other featured bills can be found here.