June 24, 2017

Archives for May 6, 2016

Colorado Supreme Court: Municipal Fracking Ban Preempted by State Law

The Colorado Supreme Court issued its opinion in City of Fort Collins v. Colorado Oil and Gas Association on Monday, May 2, 2016.

Moratoria—Preemption.

The Colorado Supreme Court concluded that Fort Collins’s five-year moratorium on fracking and the storage of fracking waste within the city is a matter of mixed state and local concern and, therefore, is subject to preemption by state law. Applying well-established preemption principles, the court further concluded that the moratorium operationally conflicts with the effectuation of state law. Accordingly, the court held that the moratorium is preempted by state law and, therefore, is invalid and unenforceable. The court thus affirmed the district court’s order invalidating the moratorium and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Constitutional Inalienable Rights Provision Does Not Save Fracking Ban from Preemption

The Colorado Supreme Court issued its opinion in City of Longmont v. Colorado Oil and Gas Association on Monday, May 2, 2016.

Preemption—Inalienable Rights Provision.

Applying well-established preemption principles, the Colorado Supreme Court concluded that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law. Accordingly, the court held that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable. The court further held that the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law. The court thus affirmed the district court’s order enjoining Longmont from enforcing the fracking ban and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Workers’ Compensation “Firefighter’s Statute” Shifts Burden of Causation to Employer

The Colorado Supreme Court issued its opinion in City of Littleton v. Industrial Claim Appeals Office on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In this case, the Colorado Supreme Court addressed the presumption created in the “firefighter statute,” C.R.S. § 8-41-209, of the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. The court held that the presumption in C.R.S. § 8-41-209(2)(a) relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

The court held that an employer can meet its burden by establishing the absence of either general or specific causation. Specifically, an employer can show, by a preponderance of the medical evidence, either: (1) that a firefighter’s known or typical occupational exposures are not capable of causing the cause of the claimant’s condition or type of cancer at issue; or (2) that the firefighter’s employment did not cause the firefighter’s particular cancer where, for example, the claimant firefighter was not exposed to the substance or substances that are known to cause the firefighter’s condition or impairment, or where the medical evidence renders it more probable that the cause of the claimant’s condition or impairment was not job-related.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statutory Presumption of Occupational Disease for Firefighters Not Irrebuttable

The Colorado Supreme Court issued its opinion in Industrial Claim Appeals Office v. Town of Castle Rock on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In a companion case, City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, the Colorado Supreme Court held that the presumption created by the firefighter statute, C.R.S. § 8-41-209, relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

Here, the court held that an employer can seek to meet its burden to show a firefighter’s cancer “did not occur on the job” by presenting particularized risk-factor evidence indicating that it is more probable that the claimant firefighter’s cancer arose from some source other than the firefighter’s employment. To meet its burden of proof, the employer is not required to prove a specific alternate cause of the firefighter’s cancer. Rather, the employer need only establish, by a preponderance of the medical evidence, that the firefighter’s employment did not cause the firefighter’s cancer because the firefighter’s particular risk factors render it more probable that the firefighter’s cancer arose from a source outside the workplace.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Companion Firefighter Workers’ Compensation Case Remanded for Reconsideration

The Colorado Supreme Court issued its opinion in City of Englewood v. Harrell on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

The Colorado Supreme Court accepted transfer of this case from the Colorado Court of Appeals pursuant to C.R.S. § 13-4-109 and C.A.R. 50. The court set aside the order issued by a panel of the Industrial Claim Appeals Office and remanded with directions to return the matter to the administrative law judge for reconsideration in light of its decisions announced in City of Littleton v. Industrial Claim AppealsOffice, 2016 CO 25, and Industrial Claim Appeals Office v. Town of Castle Rock, 2016 CO 26.

Summary provided courtesy of The Colorado Lawyer.

 

SB 16-171: Enacting Modifications to New Energy Improvement District Program

On March 22, 2016, Sen. Martinez and Rep. Tyler introduced SB 16-171Concerning Modification and Clarification of the Statutes Pertaining to the New Energy Improvement District. The bill was assigned to the Senate Local Government Committee, where it was referred, unamended, to the Senate Committee of the Whole for Second Reading. The bill passed Second and Third Readings in the Senate with no amendments and was referred to the House Committee on Transportation & Energy. The bill passed through the House with no amendments and is awaiting signature.

The New Energy Improvement District (“NEID”) is a statewide district operating a program to facilitate private financing of energy and water improvements to eligible real property. This bill modifies and clarifies the statutes that pertain to the NEID as follows:

Section 2 of the bill, C.R.S. § 32-20-105, requires the county treasurer of a county that has authorized the operation of the NEID Program (“Program”) to retain a one percent collection fee for each NEID special assessment that is collected. The bill also authorizes such a county to revoke its authorization for the operation of the program so long as the county meets all of its program financing obligations existing on the effective date of the deauthorization until all fees have been paid in full to the NEID.

Section 3 of the bill, C.R.S. § 32-20-106, does three things. First, it repeals the authority of the NEID to reduce the amount of any special assessment with the consent of the owner of the property where the special assessment is levied. Second, it clarifies that delinquent special assessment installments incur interest charges at the same rate as delinquent property taxes. Third, it requires the county treasurer to distribute NEID special assessments to the NEID in the same manner, less the collection fee, as property taxes are distributed.

Section 4, C.R.S. § 32-20-107, repeals an existing prohibition against county assessors that prohibited them from taking into account, when valuing real property, an increase in market value resulting from an energy or water improvement financed through the NEID program. Section 4 also repeals the existing authority for the NEID to initiate a civil action for foreclosure.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-169: Allowing Certain Persons Detained on Mental Health Holds to be Admitted to Law Enforcement Facilities

On March 21, 2016, Sen. Beth Martinez and Rep. Tracy Kraft-Tharp introduced SB 16-169Concerning Changes Related to the Seventy-Two-Hour Emergency Mental Health Procedure. The bill was assigned to the Senate Judiciary Committee, where it was amended and referred to the Senate Floor for Second Reading.  The bill was amended several times on Second Reading in the Senate, and it passed Third Reading with no further amendments. It has been introduced in the House and is assigned to the House Judiciary Committee.

The bill clarifies the difference between a designated facility, an emergency medical services facility, and a law enforcement facility as those terms are used in connection with the 72-hour emergency mental health procedure. Under C.R.S. § 27-65-102, a Designated Facility means a facility designated or approved by the executive director for seventy-two-hour treatment and evaluations of persons meeting the criteria provided in § 27-65-105. Emergency Medical Services Facility means a facility licensed pursuant to Part 1 of Article 3 of Title 25, that provides medical services. Finally, the bill defines Law Enforcement Facility to mean a secure jail, lockup, or other place used to confine persons charged with or convicted of crimes.

Under current law, a person who is being detained under a 72-hour emergency mental health procedure must be taken to a facility that was previously approved by the executive director of the Department of Human Services (“Designated Facility”). The bill looks to expand this and would allow individuals to be admitted to a law enforcement facility if there is no available space in a Designated Facility or an emergency medical facility and if certain conditions are met. These conditions include, but are not limited to, the person cannot be held longer than 24 hours in the law enforcement facility unless a court order is obtained granting a one-time extension that cannot exceed 72 additional hours.

Current law also allows for the facility where a person is being treated to hold the person for no longer than 72 hours from the time of admission, excluding Saturdays, Sundays, and holidays if treatment and evaluation is not available on those days. This bill would also exclude any time required for non-psychiatric medical screening or treatment from the 72-hour calculations.

Additionally, if, at any time during the 72-hour custody, a mental health or medical professional determines the person can be properly cared for without being detained, that person must be discharged as soon as possible.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-199: Amending Regulation of Programs of All-Inclusive Care for the Elderly

On April 22, 2016, Sens. Ray Scott & Pat Steadman and Reps. Brian DelGrosso & Joann Ginal introduced SB 16-199Concerning Programs of All-Inclusive Care for the Elderly. The bill was assigned to the Senate Health & Human Services Committee, where it was amended and referred to Appropriations. The bill was again amended in Appropriations and referred to the Senate floor for Second Reading. After being amended on Second Reading, the bill passed Third Reading with no amendments.

The bill makes a number changes with respect to the State Department’s interaction with and regulation of organizations and facilities providing a program of all-inclusive care for the elderly (“PACE”).

The bill requires that contracts between the Department of Health Care Policy and Financing (“Department”) and a PACE organization include the negotiated monthly capitated rate for services. The rate must be based upon a prospective monthly capitation payment to a PACE organization for a Medicaid participant enrolled in a PACE program that is less than what would otherwise have been paid under the state Medicaid plan if the participant were not enrolled in the PACE program.

The Department shall participate with Colorado PACE organizations to develop an actuarially sound upper payment limit methodology that complies with federal law, while addressing and employing information on the PACE population. The Department shall provide state long-term care options data, as well as relevant Medicare and Medicaid data, necessary for the computation of the upper payment limit. An actuary experienced in these methods shall assist with the computation. Until the upper payment limit methodology is developed and adopted in state board rules, the percentage of the upper payment limit used to calculate the monthly capitated rate shall not be less than the percentage negotiated for the 2016-2017 state fiscal year.

The bill creates the state PACE ombudsman (“ombudsman”) in the state long-term care ombudsman program. Each PACE program shall post at all PACE facilities a notice, prepared by the ombudsman, informing PACE participants of the existence of and contact information for the ombudsman. The ombudsman shall have immediate access to a PACE program or facility, and to PACE participants, for the purposes of carrying out the duties of the ombudsman.

The bill establishes the following duties of the ombudsman: (1) establish policies and procedures to identify, investigate, and resolve complaints made by or on behalf of a PACE participant related to any act or omission of any PACE organization; (2) provide training and technical assistance to PACE organizations and their employees; (3) establish procedures to analyze the development and implementation of federal, state, and local law and policies with respect to PACE services, programs, and facilities (and recommend changes to Colorado’s laws and policies); and (4) pursue administrative, legal, or other appropriate remedies on behalf of PACE participant.

The bill establishes a civil penalty for any person who takes any discriminatory, disciplinary, or retaliatory action against any PACE participant or any employee of a PACE organization for any communication with an ombudsman.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-198: Extending Reporting Requirements to Workers’ Compensation Advisory and Ratings Organizations

On April 22, 2016, Sen. Chris Holbert and Rep. Tracy Kraft-Tharp introduced SB 16-198Concerning the Standards Applicable to Documents Used by Workers’ Compensation Insurance Carriers in Colorado. The bill was introduced into the Senate Business, Labor, & Technology Committee, where it was amended and referred to the Senate Committee of the Whole. The bill was again amended on Second Reading and passed Third Reading in the Senate with no further amendments. The bill was referred to the House, where it passed through unamended.

Under current law, every carrier providing workers’ compensation insurance is required to submit an annual report by July 1 of each year to the commissioner of insurance listing any policy forms, endorsements, riders, letters, notices, or other documents affecting an insurance policy or contract issued or delivered to any policyholder in Colorado. Insurance carriers are also required to submit to the commissioner of insurance a list of any new policy forms, endorsements, riders, letters, notices, or other documents at least 31 days before using said documents.

This bill imposes the aforementioned requirements upon advisory organizations and rating organizations. The bill also states if an advisory or rating organization certifies a form in compliance with the aforementioned requirements, a carrier who subsequently uses the form in its entirety is not required to list that form in its annual report or submit a certification for that form.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 5/5/2016

On Thursday, May 5, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Winberg

Broughton v. Merit Systems Protection Board

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.