May 23, 2016

Bills Concerning Depositions for At-Risk Persons, Immunity for Reported Overdoses, and More Signed

On Thursday, May 19, 2016, Governor Hickenlooper signed six bills into law. To date, he has signed 192 bills this legislative session. The bills signed Thursday include a bill to allow depositions of at-risk persons in criminal trials in which the at risk persons may not be available to testify, a bill repealing certain mandatory terms of incarceration, and more. The bills signed Thursday are summarized here.

  • HB 16-1027 – Concerning Depositions in Criminal Cases in Which an At-Risk Person May Not Be Available for Trial, by Rep. Jessie Danielson and Sens. Nancy Todd & Jerry Sonnenberg. The bill expands and streamlines the allowable use of recorded depositions for at-risk elders. Under the bill, upon receipt of a motion the court must schedule a recorded deposition within 14 days without further findings if the victim is an at-risk elder, defined as any person 70 years of age or older; however, the bill allows the defense to challenge the motion for recorded depositions of other at-risk adults.
  • HB 16-1227 – Concerning Exemptions from Child Support Enforcement Requirements as a Condition of Receipt of Child Care Assistance Under the Colorado Child Care Assistance Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daniel Kagan & Brian DelGrosso and Sens. Owen Hill & Larry Crowder. The bill specifies that a teen parent is not required to submit an application for child support establishment as a condition of receiving child care assistance. However, the county can require the parent to submit an application for child support establishment in order to receive child care assistance once they no longer qualify as a teen parent.
  • HB 16-1302 – Concerning the Alignment of the Colorado Statutes with the Federal “Workforce Innovation and Opportunity Act” Through the “Colorado Career Advancement Act,” by Reps. Crisanta Duran & Brian DelGrosso and Sen. Linda Newell. The bill changes the title of the “Colorado Workforce Investment Act” to the “Colorado Career Advancement Act.” It also clarifies the roles of specific entities in workforce development programs and removes statutory requirements made inapplicable by the federal act.
  • HB 16-1390 – Concerning Immunity for Certain Persons who Are Involved with a Reported Overdose Event, by Rep. Dominick Moreno and Sen. Lucia Guzman. The bill provides immunity from arrest for underage persons reporting alcohol or marijuana overdoses and extends immunity from arrest and prosecution to the underage person requiring medical assistance.
  • SB 16-072 – Concerning an Increase in the Maximum Total Amount of Annual Lease Payments Authorized for Lease-Purchase Agreements Entered into Under the “Building Excellent Schools Today Act”, and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Reps. Alec Garnett & Jim Wilson. Currently under the Building Excellent Schools Today Act (BEST), the state may enter into lease-purchase agreements for public school facility capital construction projects, subject to the limitation that the maximum total annual amount of lease payments payable under these agreements does not exceed $80 million in a fiscal year. This bill establishes incremental caps on these lease payments.
  • SB 16-102 Concerning the Elimination of Mandatory Sentences to Incarceration for Certain Crimes, and, in Connection Therewith, Making and Reducing an Appropriation, by Sen. Andy Kerr and Rep. Dominick Moreno. The bill  removes the mandatory term of incarceration that must accompany convictions of certain types of second degree assault or violations of bail bond conditions.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Bills Updating Election Laws, Clarifying Tax Exemptions for Housing Authorities, and More Signed

On Wednesday, May 18, 2016, Governor Hickenlooper signed nine bills into law. To date, he has signed 186 bills into law this legislative session. The bills signed Wednesday include a bill to clarify the scope of tax exemption for housing authorities, a bill providing an exception to the prohibition against disclosing confidential mental health information when school safety is at risk, and more. The bills signed Wednesday are summarized here.

  • HB 16-1006 – Concerning Clarification of the Scope of the Exemption from Government Charges for Property Owned by or Leased to a Housing Authority or Owned by, Leased to, or Under Construction by an Entity that is Wholly Owned by an Authority, an Entity in Which an Authority has an Ownership Interest, or an Entity in Which an Entity Wholly Owned by an Authority or of Which an Authority is the Sole Member has an Ownership Interest, by Reps. KC Becker & Alec Garnett and Sen. Owen Hill. The bill clarifies that sales, use, and property tax exemptions apply to low-income housing property owned by or leased to any subsidiary of a housing authority.
  • HB 16-1063 – Concerning an Exception to the Prohibition Against Disclosing Confidential Communications with a Mental Health Professional when School Safety is at Risk, by Reps. Mike Foote & Crisanta Duran and Sens. Mark Scheffel & Bill Cadman. The bill allows a specified mental health professional tomake a disclosure if his or her client makes an articulable and significant threat to a school or its occupants or exhibits behavior that the professional deems to jeopardize the safety of students, teachers, administrators, or other school personnel.
  • HB 16-1101 – Concerning Medical Decisions for Unrepresented Patients, by Rep. Dave Young and Sen. Kevin Lundberg. The bill allows an attending physician to designate another willing physician to act as a patient’s proxy decision-maker for health care treatment under certain conditions. The attending physician cannot act as the proxy decision-maker.
  • HB 16-1228 – Concerning an Alternative Transfer Mechanism for Water Rights that Protects the Agricultural Use for which a Water Right was Originally Decreed while Permitting Renewable One-Year Transfers of a Portion of the Water Subject to the Water Right, by Reps. Jeni James Arndt & Jon Becker and Sens. Kerry Donovan & Jerry Sonnenberg. The bill allows the owner of an absolute decreed irrigation water right used for agricultural purposes to apply in water court to change the use of the water right to an agricultural water protection water right which is created by this bill.
  • HB 16-1394 – Concerning Clarifying Definitions Related to At-Risk Persons, by Rep. Dave Young and Sen. Kevin Grantham. The bill implements the recommendations of the at-risk adults with intellectual and developmental disabilities (IDD) mandatory reporting implementation task force, including changing definitions related to at-risk persons, expanding penalties for mistreatment of at-risk persons, and more.
  • SB 16-142 – Concerning Modernization of Election Law Provisions, and, in Connection Therewith, Correcting Statutory Citations, Updating Terms and Procedures to Reflect Modern Elections Administration, Conforming State Law to Federal Law, Eliminating Redundancies and Obsolete References and Practices, Harmonizing Durational Residency Requirements for Certain Local Government Elections, and Making an Appropriation, by Sen. Ray Scott and Rep. Su Ryden. The bill makes various changes and updates to election statutes.
  • SB 16-177 – Concerning Technical Modifications to Legislation Enacted in 2015 to Promote an Equitable Financial Contribution Among Affected Public Bodies in Connection with Urban Redevelopment Projects Allocating Tax Revenues, by Sens. Beth Martinez Humenik & Rollie Heath and Reps. Dickey Lee Hullinghorst & Polly Lawrence. The bill makes technical adjustments and clarifies recent legislation concerning urban renewal, urban renewal plans, and provisions for sharing tax increment financing among affected taxing entities.
  • SB 16-201 – Concerning Revising the Child Welfare Funding Mechanism, by Sen. Kevin Grantham and Rep. Dave Young. The bill requires the Department of Human Services to work with county departments of human services, residential treatment providers, the Department of Health Care Policy and Financing, and the Joint Budget Committee to review the rate-setting process for residential treatment programs serving youth in the child welfare system.
  • SB 16-211 – Concerning Contests to Specified Special District Elections that are Made on Grounds Relating to Elector Qualifications, and, in Connection Therewith, Imposing a Jurisdictional Bar on Contests of Certain Elections and Validating the Qualifications of Certain Actors when Timely Contests Challenging Those Qualifications Have Not Been Filed, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. For special district elections conducted prior to April 21, 2016, and on May 3, 2016, this bill prohibits contesting the results of the election on the grounds that any person voting at the election was not eligible to vote, except in limited circumstances, and the qualification of any person elected or appointed to a special district is validated and may not be contested.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

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.

Long Appropriations Bill, SCFD Bill, and Many More Signed by Governor

On Wednesday, May 4, 2016, Governor Hickenlooper signed 24 bills into law. Many of the bills signed Wednesday addressed transfers of moneys and financing. Some of the other bills signed Wednesday include a bill addressing the location where competency evaluations should be completed, a bill enacting statutory changes recommended by the Child Support Commission, and a bill regarding transfers of property rights on death.

Additionally, on May 3, Governor Hickenlooper signed the Long Appropriations Bill for 2016-17, HB 16-1405, and on April 29, Governor Hickenlooper signed SB 16-016, which will allow the submission of a ballot question to voters regarding extending the funding for the Scientific and Cultural Facilities District for twelve more years. To date, the governor has signed 167 bills this legislative session. The bills signed by Governor Hickenlooper this past week are summarized here.

April 29, 2016

  • SB 16-016 – Concerning the Scientific and Cultural Facilities District, and, in Connection Therewith, Amending the Ballot Question Concerning the Extension of the District to be Submitted to the Voters and Modifying Statutory Provisions Concerning the Administration of the District, by Sens. Pat Steadman & Bill Cadman and Reps. Dickey Lee Hullinghorst & Polly Lawrence. The bill allows the SCFD to submit a ballot question to district voters at the 2016 or 2017 November election authorizing the extension of the tax for 12 years through June 30, 2030, and changes the SCFD funding formula.

May 2, 2016

  • HB 16-1405 – The 2016-17 Long Appropriations Bill, by Rep. Millie Hamner and Sen. Kent Lambert. The bill sets forth the budget for the 2016-17 fiscal year.

May 3, 2016

  • HB 16-1048 – Concerning Modifications to the Business Enterprise Program to be Administered by the Department of Labor and Employment Under its Authority to Administer Vocational Rehabilitation Programs, by Rep. Dianne Primavera and Sen. Kevin Lundberg. The bill establishes a working group in the Colorado Department of Labor and Employment to study ways to expand opportunities for Business Enterprise Program vendors.
  • HB 16-1158 – Concerning Continuation Under the Sunset Law of the Identity Theft and Financial Fraud Board, by Rep. Pete Lee and Sen. Chris Holbert. The bill extends the sunset of the Identity Theft and Financial Fraud Board until September 1, 2025.
  • HB 16-1159 – Concerning Continuation Under the Sunset Law of the Colorado Fraud Investigators Unit, by Rep. Pete Lee and Sen. Chris Holbert. The bill extends the sunset of the Colorado Fraud Investigators Unit until September 1, 2025.
  • HB 16-1165 – Concerning Statutory Changes Based on the Recommendations in the Report of the 2013-2015 Colorado Child Support Commission, by Reps. KC Becker & Lois Landgraf and Sen. Larry Crowder. The bill amends child support guidelines and related statutes based on the findings of the Colorado Child Support Commission, including allowing discovery of insurance claims, requiring an annual exchange of financial information between parents, changing the formula to determine gross income, limiting the period in which a party can seek retroactive child support, and more.
  • HB 16-1268 – Concerning District Attorney’s Representation in Certain Hearings Arising from Interstate Supervision Contracts, by Rep. Mike Foote and Sen. John Cooke. The bill clarifies that a district attorney must appear on behalf of the state and counties of his or her district in any probable cause hearing for a matter under the Interstate Compact for Adult Offender Supervision or the Interstate Compact for Juveniles.
  • HB 16-1298 – Concerning Changes in Permissible Vehicle Dimensions, by Rep. Jovan Melton and Sen. John Cooke. The bill changes the maximum permissible vehicle dimensions.
  • HB 16-1317 – Concerning Clarifying the Types of Transactions that May Be Included in a Motor Vehicle Service Contract, by Rep. Angela Williams and Sen. Chris Holbert. The bill authorizes certain services to be included in a motor vehicle service contract, including tire and windshield repair, key fob repair, and more.
  • HB 16-1379 – Concerning the Criteria Under Which the State Board of Psychologist Examiners May Award Professional Development Credit for Specific Activities Currently Included in the Continuing Professional Development Program for Licensed Psychologists, by Rep. Tracy Kraft-Tharp and Sen. Beth Martinez Humenik. The bill clarifies and amends portions of the continuing professional development program for licensed psychologists, including allowing credit hours for teaching or giving presentations; allowing credit hours for writing, editing, or reviewing psychology publications; and limiting the award of credit hours to review of peer review journal articles.
  • HB 16-1406 – Concerning Department of Corrections Reimbursement of Expenses of County Coroners, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Kevin Grantham. The bill requires the Department of Corrections (DOC) to reimburse a county for reasonable and necessary costs related to investigations or autopsies for persons who were in the custody of the DOC at the time of their death. Costs may include transportation, refrigeration, and body bags.
  • HB 16-1407 – Concerning the Continuation of the Medicaid Payment Reform and Innovation Pilot Program, and, in Connection Therewith, Changing the Time Frames, Eliminating the Repeal Date of the Pilot Program, Enhancing the Reporting Requirements of the Department of Health Care Policy and Financing, and Making an Appropriation, by Rep. Dave Young and Sen. Kevin Grantham. The bill removes the July 1, 2013, deadline for HCPF to review and select payment projects for inclusion in the Medicaid Payment Reform and Innovation Pilot Program, and removes the June 30, 2016, deadline by which payment projects must be completed.
  • HB 16-1408 – Concerning the Allocation of Cash Fund Revenues to Health-Related Programs, and, in Connection Therewith, Modifying and Streamlining the Allocation of Tobacco Litigation Settlement Moneys by Replacing the Current Two-Tier Allocation System that Includes Both Percentage-Based and Fixed Amount Allocations of Settlement Moneys with a Single Set of Exclusively Percentage-Based Allocations and Replacing Settlement Moneys Funding for Specified Programs with Marijuana Tax Cash Fund Funding; Allocating Additional Settlement Moneys to the University of Colorado Health Sciences Center for Cancer Research Only; Transferring a Specified Amount from the Children’s Basic Health Plan Trust to a Newly Created Primary Care Provider Sustainability Fund on July 1, 2016; and Making and Reducing Appropriations, by Rep. Bob Rankin and Sen. Pat Steadman. The bill establishes a new formula for the allocation of the annual payment received by the state as part of the Tobacco Master Settlement Agreement, allocating revenue by percentage shares, rather than the hybrid scheme of fixed dollar amounts and capped percentage shares in multiple tiers.
  • HB 16-1409 – Concerning the Transfer of Forty-Two Million Eight Hundred Thousand Dollars on June 30, 2016, from the Unclaimed Property Trust Fund for State Programs, by Rep. Bob Rankin and Sen. Pat Steadman. The bill transfers $42,800,000 out of the Unclaimed Property Trust Fund and places it in the General Fund and the Adult Dental Fund.
  • HB 16-1410 – Concerning Matters Related to the Location Where a Competency Evaluation is Conducted, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Dave Young and Sen. Kevin Grantham. The bill changes procedures around competency evaluations in criminal proceedings, including requiring the court to order the evaluation to take place on an outpatient basis or, if the defendant is in custody, at the place where the defendant is in custody.
  • HB 16-1411 – Concerning the Supportive Residential Community Program Operated at the Fort Lyon Property, and, in Connection Therewith, Requiring a Longitudinal Evaluation of the Program; and Making an Appropriation, by Rep. Bob Rankin and Sen. Pat Steadman. The bill repeals the supportive residential community for individuals who are homeless at the Fort Lyon property in Bent County, and requires a longitudinal study of the program prior to its repeal.
  • HB 16-1413 – Concerning the Financing of the Water Pollution Control Program, and, in Connection Therewith, Making an Appropriation, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill repeals the Water Quality Control Fund and creates a separate cash fund for each of the six clean water sectors, which will receive the fees specific to its sector.
  • HB 16-1415 – Concerning the Manner in which the State Funds Driver and Vehicle Services by the Division of Motor Vehicles in the Department of Revenue, and, in Connection Therewith, Making and Reducing an Appropriation, by Rep. Millie Hamner and Sen. Pat Steadman. The bill changes the way the state funds driver and vehicle services in the DMV, by increasing the fees charged for services, allowing for funding through the Highway Users Tax Fund, eliminating the end of the year transfer of the excess reserve from the Licensing Services Cash Fund to the HUTF, and exempting the LCSF from the limit on cash reserves.
  • HB 16-1417 – Concerning Capital-Related Transfers of Moneys, by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes three FY 2016-17 transfers to the Capital Construction Fund from several sources.
  • HB 16-1418 – Concerning a Transfer from the Marijuana Tax Cash Fund to the General Fund, by Rep. Bob Rankin and Sen. Pat Steadman. The bill transfers $26,277,661 from the Marijuana Tax Cash Fund (MTCF) to the General Fund.
  • HB 16-1419 – Concerning a Reduction in the Amount of the General Fund Reserve Required for the Fiscal Year 2015-16, by Rep. Millie Hamner and Sen. Kent Lambert. The bill reduces the FY 2015-16 statutory General Fund reserve from 6.5 percent to 5.6 percent.
  • SB 16-058 – Concerning the Regulation of Certain Foods, and, in Connection Therewith, Exempting Certain Food Producers from Licensure, Inspection, and Other Regulation, and Making an Appropriation, by Sen. Owen Hill and Rep. KC Becker. The bill modifies the “Colorado Cottage Foods Act,” which allows homemade food producers to sell certain food products directly to consumers, by eliminating the tiered system and the State Board of Health’s authority to make rules governing the production of tier two foods, which currently consist of pickled vegetables, and by expanding the type of foods that may be sold by producers under the Cottage Foods Act to include other nonpotentially hazardous foods and encouraging, rather than mandating, a producer to take a food safety course.
  • SB 16-126 – Concerning Parity of State-Chartered Banks with Federally Chartered Banks Regarding Frequency of Meeting, by Sen. Ellen Roberts and Reps. Alec Garnett & Dan Nordberg. Under current law, the board of directors for a state bank is required to meet monthly. This bill requires those meetings to be held at least quarterly unless the board specifies a different schedule.
  • SB 16-133 – Concerning the Transfer of Property Rights Upon the Death of a Person, and, in Connection Therewith, Clarifying Determination-of-Heirship Proceedings in Probate, by Sen. Jack Tate and Reps. Dan Pabon & Yeulin Willett. The bill changes procedures for affirming the death of a decedent with shared ownership of real property, and makes changes to probate law for determining heirs, devisees, and property interests. It changes the definition of “interested person” to include an owner by descent or succession and to exclude any person holding a non-ownership interest in a decedent’s property. The bill also enacts portions of the “Uniform Power of Appointment Act.”
  • SB 16-137 – Concerning a Clarification of the Authority of the Parks and Wildlife Commission to Enter Into an Agreement with a Private Landowner, by Sens. Mike Johnston & Jerry Sonnenberg and Rep. Timothy Dore. The bill clarifies that the preference program does not limit the Colorado Parks and Wildlife Commission from entering into an agreement with a private landowner for public hunting and fishing and including the issuance of a hunting license in that agreement.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

HB 16-1394: Standardizing Statutory Definitions Related to At-Risk Persons

On March 17, 2016, Rep. Dave Young and Sen. Kevin Grantham introduced HB 16-1394Concerning Clarifying Definitions Related to At-Risk Persons. The bill was assigned to the House Health, Insurance, & Environment Committee, where it was amended and referred to the House floor for Second Reading. The House Committee of the Whole re-referred the bill back to the Health, Insurance, & Enviroment Committee, where it again passed with no further amendments.

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force.

(1) Standardizing statutory definitions among the “Colorado Criminal Code,” the Office of Protective Services for At-risk Adults in the Department of Human Services, and the Office of Community Living in the Department of Health Care Policy and Financing.

Under the Colorado Criminal Code, a number of amendments and additions were made to the definitions section of article 6.5, wrongs to at-risk adults, of which the following are noteworthy: “at risk person” means an at-risk adult, adult with an intellectual and developmental disability (IDD), elder, or juvenile; “exploitation” is expanded to include harassment, undue influence, or intimidation used to create a hostile environment; “mistreated” or “mistreatment” means abuse, caretaker neglect, exploitation, act/omission that threatens the health, safety, or welfare of at at-risk person, or act/omission that exposes an at-risk person to an imminent risk of bodily injury.

Under the Human Services Code, the following terms, as defined under the Criminal Code (and amended by this bill), were added to the definitions section of article 3.1, protective services for at-risk adults: “abuse,” “at-risk adult” (newly defined therein), and “mistreatment.”

Under the Health Care Policy and Financing statutes, the following terms, as defined under the Criminal Code (and amended by this bill), were added to the definitions section of article 10, community living: “abuse,” “authorized representative,” “caretaker,” “caretaker neglect,” “exploitation,” “mistreated” or “mistreatment,” and “undue influence.”

(2) Specifying that enhanced penalties for crimes against an at-risk person (as amended from “at-risk adults and at-risk juveniles”) apply to all persons 70 years of age or older and to all persons with a disability.

(3) Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with IDD. With respect to the Colorado Criminal Code, the list of mandatory reporters is expanded to include: any person providing health care or health-care-related services; emergency first responders; code enforcement officers; veterinarians; psychologists, counselors and therapists; persons performing case management or assistant services; staff of county departments of human or social services; staff of the State Departments of Human Services, Public Health and Environment, or Health Care Policy and Financing; staff of senior congregate centers; staff of area agencies on aging; those operating specialized transportation services; staff of housing agencies for at-risk adults; and personnel at schools serving students in preschool through twelfth grade. The list of mandatory reporters under the Human Services Code was expanded in the same manner as the list of mandatory reporters under the Criminal Code.

(4) Under the Human Services Code, the time when a law enforcement agency or county department is required to prepare a written report is reduced from 48 hours to 24 hours.

(5) Specifying that a county department of human or social services, pursuant to the Human Servicers Code, is to conduct an investigation of allegations of mistreatment of an at-risk adult.

(6) Clarifies that the human rights committee, pursuant to the Health Care Policy and Financing statutes, is responsible for ensuring the investigation of allegations of mistreatment of persons with IDD.

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

e-Legislative Report: Week of April 11, 2016

legislationWelcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me atjschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting Update

Here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1211 – Marijuana Transporter License

The bill creates a retail marijuana transporter license and a medical marijuana transporter license. The license is valid for five years. A licensed marijuana transporter (transporter) provides logistics, distribution, and storage of marijuana and marijuana products. A transporter may contract with multiple businesses and may also hold another marijuana license. A transporter must be licensed by December 31, 2017, in order to continue to operate. The bill describes the circumstances under which a business can terminate a contract with a transporter.

The Bar’s Cannabis Law Committee is currently monitoring and preparing comments on this bill. The bill is working through its first chamber and has been greatly amended from its original form. The Legislative Policy Committee has not taken action on this bill.

HB 16-1235 – Commissions Evaluating State Judicial Performance

The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.”

This bill was postponed indefinitely (killed) in the House State, Veterans and Military Affairs Committee. The Colorado Bar Association had many concerns with the cost and operation of the bill.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity

Under current law, the Uniform Commercial Code (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the Colorado Corporations and Associations Act (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

This bill, part of a four bill package of business entities clean up acts, was supported by the Bar and has passed the House and Senate and is on its way to be signed by the Governor.

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven

The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax.

There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in their tax system operations, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.”

Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report.

The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the Department of Revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose.

The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education.

The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking voters:

  • To increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance;
  • To use the resulting tax revenue to help fund elementary and secondary public school education; and
  • To allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

The Tax Law section of the CBA voted to oppose this bill, which was postponed indefinitely (killed) by the Senate State Affairs Committee. The Bar had concerns over the cost of vague language in the bill as well as the impact on the courts and judicial system.

HB 16-1310 – Operators Liable For Oil And Gas Operations

Under current law governing relations between surface owners and oil and gas operators, to prevail on a claim the surface owner must present evidence that the operator’s use of the surface materially interfered with the surface owner’s use of the surface of the land. The bill amends this requirement to allow proof that the operator’s oil and gas operations harmed the surface owner’s use of the surface of the land, caused bodily injury to the surface owner or any person residing on the property of the surface owner, or damaged the surface owner’s property.

The Legislative Policy Committee voted to oppose this bill because it upends the burden of proof responsibility. The bill has passed the House and is moving on to the Senate, where it will be heard by the Agriculture Committee.

HB 16-1331 – Policies On Juvenile Shackling In Court

The bill requires restraints on a juvenile to be removed prior to any court proceeding, except when the court determines the restraints are necessary:

  • To prevent physical harm to the juvenile or another person;
  • To prevent disruptive courtroom behavior by the juvenile, evidenced by a history of behavior that created potentially harmful situations or presented substantial risk of physical harm; or
  • To prevent the juvenile from fleeing the courtroom, when there is evidence of an escape history or other relevant factors.

The prosecution, sheriff, or any other detention or pretrial personnel may request that an individual juvenile be restrained in the courtroom. The court shall provide the juvenile’s attorney an opportunity to be heard before the court allows the use of restraints on a juvenile. The court may conduct a hearing on the use of restraints without the juvenile being present.

The CBA supports this bill as good policy and an extension of the efforts the courts have made this past year. While the courts need discretion, we believe this bill strikes the right balance for outlining the policies on how and when juveniles should be subject to shackling.

HB 16-1346 – Open Records Subject To Inspection Denial

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the Colorado Open Records Act (CORA) that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The Bar Association opposed this bill because of constitutional and separation of powers concerns regarding the relationship between the judicial and legislative branches of government. In addition, we believe that the PAIRR rules issued by the Chief Justice, which closely mirror the text of CORA, are better suited to meet the information needs of requesters while maintaining the integrity of judicial records.

HB 16-1394 -Aligning Issues Around At-risk Persons

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force:

  • Standardizing statutory definitions among the Colorado Criminal Code, adult protective services in the department of human services, and the office of community living in the department of health care policy and financing;
  • Specifying that enhanced penalties for crimes against an at-risk person apply to all persons 70 years of age or older and to all persons with a disability; and
  • Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with an intellectual and developmental disability (adults with IDD).

The bill also:

  • Reduces the time in which a law enforcement agency or county department is required to prepare a written report from 48 hours to 24 hours;
  • Specifies that a county department of human or social services is to conduct an investigation of allegations of mistreatment of an at-risk adult; and
  • Clarifies that the human rights committee is responsible for ensuring that an investigation of mistreatment of an adult with IDD occurred.

The Colorado Bar Association opposed the bill as written, but is working with stakeholders to review amendments from other stakeholder groups. We are working with and talking with the sponsors frequently.

SB 16-130 – Methods To Collect Consumer Use Tax

Consumer use tax is the complement to sales tax and is due on the purchases of goods where the retailer did not charge sales tax. For example, any time consumers make an Internet purchase and the out-of-state retailer does not charge sales tax, the purchaser should pay the equivalent amount of sales tax as consumer use tax directly to the Colorado Department of Revenue (department). The department has added a use tax line to the 2015 individual income tax return form in an effort to make self-reporting of use tax more convenient for consumers.

The bill specifies that after the 2015 income tax year the department is not allowed to add use tax reporting lines to the individual income tax return form for any reason. The bill also prohibits the department from auditing any taxpayer for any amount he or she reported on the use tax lines included in the 2015 individual income tax return form.

The CBA is monitoring this bill and has sought permission to make changes to the bill to ensure that collecting use taxes is efficient.

SB 16-131 Overseeing Fiduciaries’ Management Of Assets

The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

This bill rearranges the existing responsibilities for fiduciaries managing assets. It is a cleanup and reorganization of these statutes and adds the right to legal counsel for wards and protected persons. The bill is scheduled for committee later this week.

SB 16-133 – Transfer Of Property Rights At Death

Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution.

The bill amends provisions concerning determination-of-heirship proceedings, as follows:

  • Clarifies the definition of “interested person” so that anyone affected by the ownership of property may commence a proceeding;
  • Describes when an unprobated will may be used as part of a proceeding;
  • Clarifies notice requirements; and
  • Ensures that a judgment and decree will convey legal title as opposed to equitable title.

The bill enacts portions of section 5 of the Uniform Power of Appointment Act, with amendments.
This bill, the second part of the Colorado Bar Association’s probate reorganization bills, has passed the legislature and will be sent to the Governor shortly.

Bills that the LPC is monitoring, watching or working on can be found at this link:
http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

Residential Reconstruction Bill, Costs of District Health Agency Bill, and Bill Repealing Medicaid Claims Task Force Signed

On Tuesday, April 5, 2016, the governor signed three bills into law. To date, he has signed 73 bills into law this legislative session. The bills signed Tuesday include a bill to extend the time to complete residential reconstruction, a bill regarding the costs of district public health agencies, and a bill repealing the “Medicaid Clean Claims Task Force.” These three bills are summarized below.

  • SB 16-012 – Concerning the Authority of a Local Assessor to Grant Additional Time for a Landowner to Reconstruct Residential Improvements that were Destroyed by a Natural Cause, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill allows residential property to maintain its property tax classification for an indefinite period of time if the county assessor finds the property owner is making a good faith effort to rebuild after a natural disaster.
  • SB 16-094 – Concerning the Shared Costs of a District Public Health Agency by the Counties in the District, by Sen. Larry Crowder and Rep. Ed Vigil. Currently, the largest county in a multi-county public health district must serve as treasurer and district costs must be apportioned based on population. The bill allows multi-county health districts with small populations more flexibility in choosing which county will act as treasurer and apportioning costs.
  • SB 16-127 – Concerning the Repeal of the “Medicaid Clean Claims Transparency and Uniformity Act,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill repeals the Medicaid Clean Claims Transparency and Uniformity Act, repeals all ongoing work of the Medicaid Clean Claims Task Force, and repeals the requirement that insurance companies bill using codes developed by the task force. Related statutory definitions are also repealed.

For a complete list of the governor’s 2016 legislative decisions, click here.

SB 16-026: Preventing Restriction of Communication Rights of Protected Persons

On January 13, 2016, Sen. Laura Woods introduced SB 16-026Concerning Personal Rights of Protected Persons, and, In Connection Therewith, Limiting the Ability of a Guardian or Conservator to Isolate a Protected Person. The bill was assigned to the Senate Judiciary Committee, where it was amended and referred to Appropriations.

The proposed bill provides that a guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons. Unless a restriction is authorized by a court order, this includes the right to receive visitors, telephone calls, or personal mail. A court may issue such order restricting communications, visitations, or interactions if good cause can be shown by a guardian or conservator.

Additionally, an interested person, including the protected person, who has a reasonable belief that the guardian or conservator has violated the court order may move the court to do any one of the following: (1) require the guardian or conservator to grant a person access to the protected person; (2) restrict, or further restrict, a person’s access to the protected person; (3) modify the guardian or conservator’s duties; or (4) remove the guardian or conservator.

The proposed bill also provides that a guardian or conservator who knowingly isolates a protected person in violation of the law or a court order is subject to removal.

The bill also proposes certain instances in which the guardian or conservator must notify the protected person’s closest known family members or person designated by the protected person. These instances are: (1) if the protected person changes his or her residence; (2) if the protected person resides at a location other than his or her residence for more than 7 days; (3) if the protected person is admitted to a medical facility for acute care or emergency care; or (4) if the protected person dies.

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

DUI Victim Impact Panel Bill, Definition of Veteran Bill, and More Signed by Governor Hickenlooper

On Tuesday, March 22, 2016, Governor Hickenlooper signed nine bills into law. To date, he has signed 46 bills into law this legislative session. The bills signed Tuesday include a bill increasing the defendant’s cost for appearances before victim impact panels in DUI cases, allowing the state forest service to award grants for broadcast burns, conforming the Colorado statutory definition of “veteran” to federal law, creating an oversight committee for Colorado’s health benefit exchange, and more. The bills signed Tuesday are summarized here.

  • HB 16-1017 – Concerning Appearances Before a Victim Impact Panel, by Reps. Dan Pabon & Polly Lawrence and Sens. John Cooke & Michael Johnston. The bill increases the cost for appearances before a victim impact panel from $25 to $50.
  • HB 16-1019 – Concerning Increased Authority to Use Broadcast Burning as a Tool to Promote Watershed Restoration, by Rep. KC Becker and Sens. Matt Jones & Ellen Roberts. The bill allows the Colorado State Forest Service to award grants for broadcast burning.
  • HB 16-1026 – Concerning the Repeal of the Department of Revenue’s Revenue Impact Accounting Requirements Related to a Group of Bills Enacted in 2010, by Reps. Dan Thurlow & Tracy Kraft-Tharp and Sen. Chris Holbert. The bill repeals the requirement that the Department of Revenue provide quarterly reports about the fiscal impact of certain bills passed in the 2010 legislative session.
  • HB 16-1032 – Concerning Changes to the Content of a Criminal Summons, by Rep. Susan Lontine and Sens. Nancy Todd & John Cooke. The bill removes the requirement that summons and complaints for misdemeanors, petty offenses, and misdemeanor traffic offenses contain the defendant’s license plate number, driver’s license number, and a place to sign.
  • HB 16-1125 – Concerning Creating a Colorado Statutory Reference to Conform with the Federal Definition of “Veteran,” by Rep. Catherine Roupe and Sen. Randy Baumgardner. The bill recreates the definition of “veteran” in state law to conform with federal law and makes conforming amendments.
  • HB 16-1130 – Concerning Changes to Annual Reports Prepared by the Department of Education, by Rep. Kevin Priola and Sen. Mike Johnston. The bill changes the date on which the Office of Dropout Prevention in the Department of Education must submit a report from February 15 to March 15, starting in 2017 and continuing each year thereafter. The bill also removes requirements that the Department of Education submit to the General Assembly executive summaries of reports.
  • HB 16-1148 – Concerning the Oversight Authority of the Health Insurance Exchange Oversight Committee with Regard to Policies that Affect Consumers Proposed by the Health Benefit Exchange, by Rep. Lang Sias and Sens. Ellen Roberts & John Kefalas. The bill requires Colorado’s health benefit exchange, Connect for Health Colorado, to create and operate technical and advisory groups to report to Connect for Health Colorado’s Board on issues that affect consumers.
  • HB 16-1161 – Concerning the Allocation of Certain Money that Exceeds the Total Amount of All Warrants Issued by the State Treasurer to Reimburse Local Governmental Entities for Property Tax Revenues Lost as a Result of the Application of a Certain Property Tax Exemption, by Rep. Dave Young and Sen. Kent Lambert. The bill changes allocation of revenue from senior property tax exemptions so that five percent of the revenue will go to the Veterans Assistance Grant Program Cash Fund.
  • HB 16-1241 – Concerning a Supplemental Appropriation to the Department of Higher Education, by Rep. Millie Hamner and Sen. Kent Lambert. The bill provides a supplemental appropriation to the Department of Higher Education.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

e-Legislative Report: February 16, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up to date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings; please RSVP if you are interested.

LPC Meeting Update

The following bills were discussed by the LPC. Other bills of interest from that agenda are tracked and updated below.

HB 16-1078 Local Government Employee Whistleblower Protection
The bill prohibits a county, municipality, or local education provider from imposing any disciplinary action against an employee on account of the employee’s statements to any person about the local government that the employee reasonably believes to show: a violation of a state or federal law, a local ordinance or resolution, or a local education provider policy; a waste or misuse of public funds; fraud; an abuse of authority; mismanagement; or a danger to the health or safety of students, employees, or the public. The bill permits an employee to file a written complaint with the office of administrative courts, for referral to an administrative law judge, alleging that a local government has imposed disciplinary action that violates this prohibition and seeking injunctive relief and damages. Employees who lose the administrative hearing may file a civil action in district court. The employee protection does not apply if the disclosure was false or made with reckless disregard for the truth or falsity thereof, or if it was of a protected public record or confidential information that was not reasonably necessary to show one or more of the identified circumstances. Administrative law judges are given jurisdiction to hear, determine, and make findings and awards on all these whistleblower cases. The director of the office of administrative courts is required to establish rules to govern these proceedings and hearings.
The LPC voted on the recommendation and request of the Government Counsel and Labor & Employment Law sections to oppose the bill.

HB 16-1154 Employer Definition Clarify Franchisee Status
The bill clarifies that the definition of “employer” only includes a person who possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.
The LPC voted to support the bill on the recommendation and presentation of the Franchise subsection of Business Law section.

HB 16-1232 Sunset DOR Private Letter Ruling & General Information Letter
Currently, the executive director of the department of revenue (department), or the executive director’s designee, is charged with issuing, on written request from a taxpayer, private letter rulings (binding determinations regarding the tax consequences of a proposed or completed transaction), and Information letters (nonbinding statements providing general information regarding any tax administered by the department). This duty is currently scheduled to sunset on September 1, 2016. The bill continues the requirement of the department to issue these letters until September 1, 2023. The bill also specifies that the department must track the total state full-time equivalent (FTE) personnel positions necessary and the hours dedicated by each FTE for the issuance, declination, modification, or revocation of all information letters or private letter rulings.
The LPC voted to support the bill and testify in favor of continuing the practice. The bill will be heard in committee next week.

SB 16-115 Electronic Recording Technology Board
The bill creates the electronic recording technology board (board) in the department of state. The board, which is authorized to issue revenue bonds, is established as an enterprise. So long as it constitutes an enterprise, the board is not subject to any provisions of section 20 of article X of the state constitution. The board sunsets in 6 years, but prior to that sunset, it is subject to a sunset review. The board is authorized to impose a surcharge of up to $2 on all documents that a clerk and recorder receives for recording or filing. If imposed, counties are required to collect the surcharge on behalf of the board and transmit it to the state treasurer for deposit in the newly created electronic recording technology fund (fund). The board is required to: develop a strategic plan incorporating the core goals of security, accuracy, sequencing, online public access, standardization, and preservation of public records; determine functionality standards for an electronic filing system that support the core goals; issue a request for proposal for electronic filing system equipment and software that will be available to counties on an optional basis; develop best practices for an electronic filing system; provide training to clerks and recorders related to electronic filing systems; and make grants to counties to establish, maintain, improve, or replace electronic filing systems for documents that are recorded with a clerk and recorder. In awarding grants, the board is required to give priority for grants to counties that do not have sufficient revenue from the surcharge proceeds to maintain their existing electronic filing systems. The money in the fund is continuously appropriated to the board to be used for these purposes. The bill repeals the secretary of state’s powers to ensure uniformity related to electronic filing systems, which powers become the board’s responsibility, and requires the department of state to prepare an annual report that is published online about the grants that the board made in the prior fiscal year. The bill also extends the one-dollar surcharge that a county clerk and recorder is currently required to collect and use for the county’s core or electronic filing system for 9.5 years. The definition of “electronic filing system” is expanded to include elements of the “core filing system,” which term is repealed.
The LPC voted on the recommendation of the Real Estate Section, which has been involved with the creation and drafting of the bill, to support the bill and testify in favor of its passage in committee.

SB 16-043 Student Loans Consumer Protections
The bill prohibits a private educational lender, as defined in the bill, from offering gifts to a covered educational institution, as defined in the bill, including public and private institutions of higher education, in exchange for any advantage or consideration related to loan activities or from engaging in revenue sharing. Further, the bill prohibits persons employed at covered educational institutions from receiving anything of  value from private educational lenders. The bill makes it unlawful for a private educational lender to impose a fee or penalty on a borrower for early repayment or prepayment of a private education loan and requires a lender to disclose any agreements made with a card issuer or creditor for purposes of marketing a credit card. The bill requires private educational lenders to disclose information to a potential borrower or borrower both at the time of application for a private education loan and at the time of consummation of the loan. The required disclosures are described in the bill and include, among other disclosures, the interest rate for the loan and adjustments to the rate, potential finance charges and penalties, payment options, an estimate of the total amount for repayment at the interest rate, the possibility of qualifying for federal loans, the terms and conditions of the loan, and that the borrower may cancel the loan, without penalty, within 3 business days after the date on which the loan is consummated.
The LPC voted to support this bill and to authorize the Juvenile Law section to testify in its favor in committee. This bill would help graduating lawyers, and future graduates, with the debt burden of school.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Recognition of Substitute Health Care Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute health care decision-making document (document) is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a document is subject to a court order mandating acceptance of the document and liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a document under certain described conditions.
The LPC voted to remain neutral on the bill, while authorizing the Health Law section to testify as to the specific concerns it raised in the context of medical practices.

SB 16-047 No Detention For Juveniles Who Are Truant
The bill prohibits a juvenile detention facility from receiving or providing care for a juvenile who violates a court order to attend school unless the juvenile is also adjudicated for a delinquent act and remains under the jurisdiction of the juvenile court for committing the delinquent act.
The LPC is concerned that the bill, by precluding a court from enforcing its own orders, is likely unconstitutional, and does not allow the judicial branch to complete the requirements and reports that were created by SB 15-184.

SB 16-103 Canadian Domestic Violence Protection Order Enforcement
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act” as recommended by the national conference of commissioners on uniform state laws. The bill allows a peace officer to enforce a Canadian domestic violence protection order. The bill allows a court to enter an order enforcing or refusing to enforce a Canadian domestic violence protection order. The bill provides immunity for a person who enforces a Canadian domestic violence protection order.
The LPC voted to support this bill on the recommendation of the Family Law section.

Updates regarding bills the CBA is currently focused on:

HB 16-1145 Documentary Fee For Residential Real Property
The CBA was able to propose an amendment to the bill that moved us to “neutral” on this bill. It will be heard in committee this week.

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
This sponsor has agreed to remove the language that the CBA was concerned about. With this amendment, the CBA can officially monitor the bill going forward.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The LPC asked that this bill be reviewed for comment by the Lawyers Professional Liability Committee. Once that review is complete, the LPC will revisit the act.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset Act
The CBA voted to support the bill as written and is monitoring the bill for any additional amendments that may impact it.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

SB 16-120 Review By Medicaid Client For Billing Fraud
The bill requires the department of health care policy and financing (department), by a certain date, to develop and implement an explanation of benefits for medicaid recipients. The purpose of the explanation of benefits is to inform a medicaid client of a claim for reimbursement made for services provided to the client or on his or her behalf, so that the client may discover and report administrative or provider errors or fraudulent claims for reimbursement. The bill specifies certain information that must be included in the explanation of benefits. Specifically, the explanation of benefits must include information regarding at least one method for a medicaid client to report errors in the explanation of benefits. The department shall work with medicaid clients and medicaid advocates to develop an explanation of benefits and educational materials that are understandable to medicaid clients. The explanation of benefits must be sent to clients not less than bimonthly, and the department shall determine the most cost-effective means for producing and distributing the explanation of benefits, which means may include e-mail or distribution with existing communications to clients.

HB 16-1258 Court Clerks Posting Of Service
Under current law, if a respondent in a domestic relations action cannot be personally served and is served by publication, the clerk of the court is required to post a copy of the process on a bulletin board in his or her office for 35 days after the date of publication. The bill gives the clerk the option of posting the service online on the court’s website rather than on a bulletin board.

HB 16-1261 Retail Marijuana Sunset
Sunset Process—House Finance Committee. The bill implements the following recommendations from the sunset report for the retail marijuana program: extending the retail marijuana code until September 1, 2019; stating that regulation of labeling, packaging, and testing is a matter of statewide concern; and repealing the following provisions from the retail marijuana code: the requirement that a licensee post a surety bond as condition of licensure; the requirement that the executive director deny a license based on a previous denial at the same location; the proscription on the placement and sale of marijuana-themed magazines; and the authority to promulgate rules prohibiting misrepresentation and unfair practices. The bill creates two new retail marijuana licenses, a retail marijuana transport license and a retail marijuana operator license, and gives the state licensing authority rulemaking authority over those licenses. The bill conforms language in the retail marijuana code to language in the medical marijuana code related to mandatory testing, the confidentiality of licensee information, and limited access areas.

Run, Walk, Roll, and Fundraise for Disability Law Colorado

colfaxmarathonJoin the Disability Law Colorado team for the Colfax Marathon weekend for fun in the sun! We race to ensure that people with disabilities and older people receive the same civil rights people without disabilities do — living in the community, working at a meaningful job, going to school, and enjoying Colorado’s vast recreational opportunities.

This year’s Colfax Marathon will be May 14-15, 2016. The Colfax Marathon offers several opportunities for runners of different abilities — there is a full marathon, a half marathon, an Urban 10-Miler, a marathon relay race where five people run distances ranging from 3.9 to 6.4 miles, and a Colfax 5K. Any of these races can be run to support Disability Law Colorado — just choose “Run for a Nonprofit” before you register and select Disability Law Colorado.

Not up for a full marathon? Or even a half? That’s okay, you can do a leg of the marathon relay! If you don’t have a full team, contact Julie Busby at 303-722-0300, x507 or jbusby@disabilitylawco.org, and she will help connect you to other runners.

We race to make a difference! Register and join our team at www.runcolfax.org, or get more information by calling Julie Busby at 303-722-0300, x507. Learn more about Disability Law Colorado and how we help by visiting www.disabilitylawco.org.

Disability-Law-CO-Colfax-Marathon_Page_1

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.  Members are welcome to attend the meetings – please RSVP if you are interested.

LPC Meeting held Friday, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.