May 19, 2013

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Probate Omnibus Bill, Employee Privacy, HOA Bills Signed by Governor Hickenlooper

May 14, 2013 by Leave a Comment

Although the Colorado General Assembly adjourned sine die on May 8, 2013, bills continue to be signed into law by Governor Hickenlooper. To date, the governor has signed 231 bills. Some of the most recently signed bills are summarized below.

On Thursday, May 7, Governor Hickenlooper signed one bill — HB 13-1117 - Concerning Alignment of Child Development Programs, and, in Connection Therewith, Making and Reducing an Appropriation, by Rep. Millie Hamner and Sens. Mary Hodge and Andy Kerr. The bill consolidates several child development programs in the Department of Human Services and extends  the Early Childhood Leadership Council, which was set to sunset on July 1, 2013.

Governor Hickenlooper signed 18 bills into law on Friday, May 10, 2013. Six of them are summarized here.

On Saturday, May 11, 2013, the governor signed 19 bills into law. Five of them are summarized here.

Finally, on Monday, May 13, 2013, Governor Hickenlooper signed 11 bills into law. Four of them are summarized here.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

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SB 13-205: Making the Colorado Medicaid False Claims Act Compliant with Federal Law

March 27, 2013 by Leave a Comment

On Wednesday, March 13, 2013, Sen. Mary Hodge  introduced SB 13-205 – Concerning Revisions to the Colorado Medicaid False Claims Act to Comply with Federal Law. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In order for Colorado to retain a greater percentage of monetary recoveries for fraudulent medicaid claims, the “Colorado Medicaid False Claims Act” (act) must be at least as effective as federal law in rewarding and facilitating qui tam actions for false and fraudulent claims. The bill amends the act to bring the act into compliance with federal law as follows:

  • Removes specific dollar amounts relating to the penalty and instead references federal law to determine the amount of the penalty and any adjustments to the penalty;
  • Corrects statutory language as to whom a claim is presented;
  • Clarifies that the act bars persons other than the state from intervening only in actions brought under this act and not in other actions;
  • Clarifies that the court does not have jurisdiction under this act against members of the general assembly, state judiciary, or an elected executive branch official if the claim is based upon information or evidence known to the state at the time the action is brought;
  • Clarifies that a person bringing the action (relator) cannot bring an action based upon allegations or transactions that are the subject of a civil suit or administrative civil money penalty proceeding in which the state is already a party;
  • Requires the court, with certain exceptions, to dismiss an action that is based upon allegations or transactions publicly disclosed in certain ways, unless the relator is the original source of the information;
  • Clarifies who can bring an action under the act for retaliation relating to employment and provides the time frame within which an action for retaliation must be brought; and
  • Amends the definitions of “obligation” and “original source.”

    • On March 20, the Health & Human Services Committee approved the bill and sent it to the full Senate for consideration on 2nd Reading.

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

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    SB 13-137: Implementing a Medicaid Fraud Detection System

    February 24, 2013 by Leave a Comment

    On Tuesday, January 29, 2013, Sen. Ellen Roberts introduced SB 13-137 – Concerning System Improvements to Prevent Fraud in the Medicaid Program, and, in Connection Therewith, Employing Advanced Data Analytics. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill directs the chief information officer of the office of information technology (office) to design and implement a Medicaid fraud detection system (system) for the purpose of detecting and preventing Medicaid provider and client fraud, waste, and abuse.

    The system designed by the chief information officer shall include industry best practices relating to fraud detection and prevention. The chief information officer shall also incorporate emerging strategies and technologies into the system as they become available.

    Among other data and information, the system shall utilize Medicaid claims and billing data and information from providers, and state and federal agency data-matching systems.

    Utilizing appropriate data-sharing protocols, the bill requires state agencies to provide data and information to the office for purposes of implementing the system.

    The bill requires the department of health care policy and financing (state department) to collaborate with the office in the design, implementation, and operation of the system. Consistent with state and federal law concerning data sharing and medicaid records, the state department shall provide necessary data and information to the office concerning medicaid providers and clients.

    The state department shall participate in securing funding for the system, as such funding may be available, and shall consider various funding mechanisms for the system. The bill is assigned to the Health & Human Services Committee.

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    HB 13-1068: Allowing Unannounced Inspections of Medicaid Providers Consistent with Federal Law

    February 21, 2013 by Leave a Comment

    On January 9, 2013, Rep. Dave Young and Sen. Ellen Roberts introduced HB 13-1068 - Concerning On-site Inspections of Medicaid Providers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    Currently, state law requires the department of health care policy and financing (department) to provide advance notice to a medicaid provider of a review or audit of the provider.

    Federal law requires that the department require a provider to permit the department or its contractors and the federal medicaid agency or its agent to conduct on-site inspections of provider locations, unannounced and without advance notice to the provider, for purposes of ensuring the accuracy of records and compliance with federal and state medicaid requirements. The bill amends the statute to allow for unannounced inspections of medicaid providers. The bill is assigned to the Public Health Care & Human Services Committee and is scheduled for committee review on Tuesday, February 19 at 1:30 p.m.

    Since this summary, the bill was amended by the House Public Health Care & Human Services Committee and sent for Second Reading by the House Committee of the Whole.

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    Colorado Court of Appeals: Department of Medicaid Does Not as Victim for Purposes of Restitution Statute

    August 21, 2012 by Leave a Comment

    The Colorado Court of Appeals issued its opinion in People v. McCarthy on August 16, 2012.

    Restitution—“Victim”—Colorado Department of Health Care Policy and Financing.

    Defendant appealed the trial court’s order concluding that the Colorado Department of Health Care Policy and Financing (Department) is a victim for purposes of the criminal restitution statute and granting restitution to the Department for costs incurred as a result of defendant’s vehicular assault. The order was reversed and the case was remanded.

    Defendant, while driving under the influence, ran a red light and struck another car, causing seriously bodily injury to two passengers in the other car. The trial court ordered that defendant pay $417,750 to the Department for Medicaid disability benefits paid to a rehabilitation hospital on behalf of one of the victims.

    Defendant argued that the Department does not qualify as a “victim” for purposes of the restitution statute. Under the vehicular assault statute, a victim is a human being. Because the Department has not been expressly identified by the legislature as a victim in the restitution statute, and the particular nature of the crime does not establish a right to restitution, the Department cannot qualify as a victim under the restitution statute. Accordingly, the case was remanded to the trial court with directions to modify the order so that it excludes the grant of $417,750 in restitution to the Department.

    Summary and full case available here.

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    Tenth Circuit: Couple May Purchase Qualifying Annuity Payable to Community Spouse in Addition to Retaining Medicaid Resource Allowance

    July 10, 2012 by Leave a Comment

    The Tenth Circuit Court of Appeals published its opinion in Morris v. Oklahoma Dep’t of Human Services on Monday, July 9, 2012.

    The Tenth Circuit reversed and remanded the district court’s decision. Petitioners brought suit to challenge the Oklahoma Department of Human Services’ denial of their application for Medicaid benefits as inconsistent with federal law. “After calculating the couple’s resources and the [Community Spouse Resource Allowance], Respondents determined that [Petitioners] were ineligible for benefits. In an effort to ‘spend down’ their excess resources, [Petitioners] purchased an actuarially sound annuity payable to [the husband]. Despite this purchase,[Respondent] determined that [the wife] remained ineligible. It reasoned that [the wife] could not spend her share of the couple’s resources on an annuity payable to [her husband], or in the alternative, that [the wife] was subject to a transfer penalty for transferring to [her husband] a sum in addition to the CSRA. The district court granted summary judgment in favor of Respondents, upholding the agency’s application of the Medicaid statutes.”

    The Tenth Circuit disagreed with the district court’s analysis. “As the federal agency charged with administering Medicaid has noted, a couple may convert joint resources—which may affect Medicaid eligibility—into income for the community spouse—which does not impact eligibility—by purchasing certain types of annuities. This result is not dependent on the CSRA provisions, which provide an independent basis for sheltering certain resources. In other words, a couple may purchase a qualifying annuity payable to the community spouse in addition to the community spouse’s retention of the CSRA.” Additionally, the Court held that the “limit on spousal transfers applies only after a state agency has declared the institutionalized spouse eligible for Medicaid benefits.” Although the Court noted the district court’s concerns regarding the exploitation of what can only be described as a loophole in the Medicaid statutes, it concluded that the problem can only be addressed by Congress.

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    Affordable Care Act Upheld by the United States Supreme Court

    June 28, 2012 by Leave a Comment

    According to SCOTUSBlog, the United States Supreme Court has upheld the entirety of President Obama’s health care reform law known as the Affordable Care Act. Chief Justice Roberts joined the Court’s four left-leaning justices and penned the opinion, validating the individual mandate as a tax rather than under the Commerce Clause. For a more detailed evaluation, visit SCOTUSBlog for continuing analysis throughout the day.

    In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

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    Colorado Court of Appeals: Department of Health Care Policy and Financing’s Interpretation of Home Service Waiver Rules Was Consistent with State and Federal Statutes

    June 25, 2012 by Leave a Comment

    The Colorado Court of Appeals issued its decision in Schlapp v. Colorado Department of Health Care Policy and Financing on June 21, 2012.

    Medicaid Home and Community-Based Services Children’s Waiver—Eligibility.

    Defendants Colorado Department of Health Care Policy and Financing (Department) and Mesa Developmental Services (Mesa) determined that plaintiff Luke Schlapp, a child, was ineligible for a Medicaid Home and Community Community-Based Services Children’s Waiver (Home Services Waiver). Plaintiff appealed and the Court of Appeals affirmed.

    The Colorado Medical Assistance Act provides home and community-based long-term care services (services) to certain groups that otherwise would not qualify for federal- and state-funded Medicaid under traditional income guidelines. For each services group, the state must request a waiver from the Centers for Medicare and Medicaid Services to receive federal funds. As relevant, the General Assembly requested waiver programs for Home Services Waiver, Children With Autism Waiver, and Children’s Extensive Support Waiver.

    The Department deemed Luke eligible for a Home Services Waiver in 2006, when he was 3 or 4 years old.When he was 4 years old, he obtained a Children With Autism Waiver under which he received occupation, speech, physical, and behavioral therapy services through Medicaid. He became ineligible when he turned 6 in 2009. He then applied for a Home Services Waiver. Mesa used a standard long-term care assessment tool (ULTC 100.2) to evaluate his eligibility. It showed he could require “hospital or nursing home level of care.” The Department reviewed the application, along with two Professional Medical Information Pages (physician pages). Based on the physician pages, the Department found Luke ineligible for a Home Services Waiver. An administrative law judge affirmed. Luke appealed to the district court. The lower court initially reversed the Department’s decision but, on reconsideration, affirmed.

    On appeal, Luke argued the Department erred because (1) it improperly considered criteria other than his score on the “Activities of Daily Living” section of the ULTC 100.2; (2) it violated the Administrative Procedure Act (APA) by applying a new and unpublished “medically fragile” eligibility requirement; (3) the new requirement is unlawful because it (a) creates a distinction between “medical” and “cognitive/behavioral” needs, and (b) categorically excludes children with autism from eligibility; and (4) he met all listed eligibility criteria. The Court rejected all of these arguments and affirmed the district court’s judgment.

    The Court noted that, consistent with federal Medicaid law, the Colorado Medical Assistance Act requires an applicant to have medical needs and would qualify Luke for institutionalization. The Act governs the Home Services Waiver program and does not encompass persons who are only mentally retarded or only have developmental disabilities. The Court agreed with the Department that the “Activities of Daily Living” scores on the ULTC 100.2 are not necessarily determinative of eligibility for a waiver and that this interpretation is consistent with the federal and state statutes it administers.

    The Court also rejected Luke’s contention that the medical need requirement was “new” and that the Department did not comply with APA rulemaking requirements before applying it. The Court held that the requirement is clearly not new; it is a fundamental requirement of both federal and state enabling statutes and is clearly set forth in the Colorado regulations.

    Luke argued the distinction the Department made between “medical” and “cognitive/behavioral” needs is arbitrary and contrary to law. The Court again stated that the Department’s application of the medical need requirement is consistent with the applicable statutes and regulations. The use of this definition does not categorically exclude those with autism, because a child with autism might have medical needs that would qualify him for the waiver. Finally, the Court found substantial evidence in the record to support the Department’s decision and therefore affirmed the judgment.

    Summary and full case available here.

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    Governor Hickenlooper Finishes Signing Bills Approved This Year by General Assembly

    June 15, 2012 by Leave a Comment

    Governor Hickenlooper’s desk got a little cleaner last week, as he signed the last of the bills approved by the General Assembly during this legislative session. In total, the governor signed 309 bills this year. He also vetoed one bill, allowed one bill to pass into law without his signature, and allowed Lieutenant Governor Joe Garcia to sign one bill.

    And, don’t miss our Legislative Wrap-Up CLE Presentation on July 10 to learn how laws passed this legislative session will affect your practice! Details below.

    On Wednesday, June 6, 2012, Governor Hickenlooper signed eight bills into law, including a bill designed to modernize the state’s personnel system. That bill and two others are summarized here.

    • HB 12-1321 – Concerning the State Personnel System, and, in Connection Therewith, Enacting the “Modernization of the State Personnel System Act.”
      Sponsored by Reps. Mark Ferrandino and Glenn Vaad and Sens. Mike Johnston and Keith King. The bill establishes a merit pay system to replace the old pay-for-performance system, makes changes regarding separation of state employees, and makes conditional changes to the appointment of state employees.
    • HB 12-1272 – Concerning Continuation of Enhanced Unemployment Insurance Benefits for Unemployed Individuals Participating in Approved Training Programs, and, in Connection Therewith, Making an Appropriation.
      Sponsored by Reps. Crisanta Duran and Robert Ramirez and Sen. Linda Newell. The bill extends enhanced unemployment insurance benefits for unemployed individuals involved in approved training programs until June 30, 2014.
    • HB 12-1041- Concerning the Creation of an Electronic Death Registration System in the Department of Public Health and Environment and, in Connection Therewith, Making an Appropriation.
      Sponsored by Rep. Jeanne Labuda and Sen. Lucia Guzman. The bill creates an electronic system for reporting of death information to counties and provides an alternative to the current paper-based system that requires families to travel to the decedent’s county of death in order to receive a death certificate.

    The governor continued his bill signing efforts on Thursday, June 7, 2012, when he signed two bills, including a criminal proceedings omnibus bill and a bill clarifying CORA. These two bills are summarized below.

    • HB 12-1310 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings, and, in Connection Therewith, Making an Appropriation.
      Sponsored by Rep. Bob Gardner and Sen. Morgan Carroll. The bill incorporates several other bills regarding issues of criminal procedure, and affects several areas of criminal law, including sentencing, court proceedings, sex offenses, probation, and parole. It also criminalizes the use of cathinones (bath salts).
    • HB 12-1036 – Concerning Clarification of the Exemption from the “Colorado Open Records Act” for Investigative Files.
      Sponsored by Rep. Jim Kerr and Sen. Betty Boyd. The bill clarifies that the exemption from CORA applies to investigative files for all civil, criminal, and administrative proceedings in Colorado, and also clarifies the security and chain of custody for ballots throughout the election season.

    On Friday, June 8, 2012, Governor Hickenlooper signed the last bills of this legislative session. He signed 14 bills on Friday, including two bills that help military families in Colorado, HB 12-1059 and HB 12-1350. Five of the bills Governor Hickenlooper signed Friday are summarized here.

    • HB 12-1273 – Concerning the Inclusion of Approved Facility Schools Affiliated with a Hospital to the Definition of Child Care Facility for Purposes of the Child Care Contribution Income Tax Credit.
      Sponsored by Rep. Dan Pabon and Sen. Pat Steadman. The bill adds schools that are operated by nonprofit hospital facilities for the benefit of their patients to the list of eligible recipients for the state child care contribution tax credit. Facilities would be eligible to receive donations in 2013 but individuals would not be able to claim the credit until 2014.
    • HB 12S-1002 - Concerning Administration of the Unemployment Insurance Program in Order to Stabilize Unemployment Insurance Rates, and, in Connection Therewith, Facilitating the Issuance of Unemployment Revenue Bonds, Accelerating the Creation of the Division of Unemployment Insurance in the Department of Labor and Employment, and Making Technical Changes to Provisions Enacted as a Part of House Bill 11-1288 to Ensure Appropriate Transition to the New Unemployment Insurance Premium Rate Structure.
      Sponsored by Reps. Larry Liston and Dan Pabon and Sen. Cheri Jahn. The bill enables the newly created Division of Unemployment Insurance (UI) to issue revenue bonds on behalf of the UI program. It requires certification from several officials, including the Executive Director of the CDLE, the State Treasurer, and the Governor, regarding the issuance of the revenue bonds.
    • SB 12-036 – Concerning Parental Consent for the Collection of Information from Students in Schools.
      Sponsored by Sen. Shawn Mitchell and Rep. Chris Holbert. The bill requires parental consent when schools gather certain information from students, including social security numbers or information regarding religious affiliation.
    • SB 12-128 - Concerning Achieving Efficiencies in the Medicaid Long-Term Care Program Through Greater Utilization of Alternative Care Facilities.
      Sponsored by Sen. Ellen Roberts and Rep. Ken Summers. The bill authorizes the Department of Health Care Policy and Financing to enhance reimbursements to alternative care facilities for patients transferred from nursing homes and also allows the DHCPF to create a program to identify Medicaid patients who are at risk of long-term nursing home placement and could otherwise utilize alternative care facilities.
    • HB 12-1110 - Concerning the Regulation of Appraisal Management Companies, and, in Connection Therewith, Making an Appropriation.
      Sponsored by Rep. Angela Williams and Sen. Morgan Carroll. The bill redefines the legal meaning of appraisal management companies (AMCs) and creates a licensure process in the Division of Real Estate, including establishing licensure guidelines.

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

    CLE Program: 2012 Legislative Update with Michael Valdez – Tales from Under the Golden Dome

    This CLE presentation will take place on Tuesday, July 10. Participants may attend live in our classroom or watch the live webcast.

    If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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    HB 12-1340: Reduction in the Rate Paid to Skilled Nursing Facilities from the General Fund for Medicaid Per Diem Rates

    April 23, 2012 by Leave a Comment

    On April 4, 2012, Rep. Jon Becker and Sen. Kent Lambert introduced HB 12-1340 – Concerning a Reduction in the General Fund Portion of the Per Diem Rates Paid to Nursing Facilities, and, In Connection Therewith, Reducing an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    Joint Budget Committee Budget Package Bill.

    The bill reduces the general fund portion of the per diem rate paid to nursing facilities commencing in the 2012-13 fiscal year and each fiscal year thereafter. The bill passed out of the House on April 12 and is assigned to the Appropriations Committee; the bill is listed on the Appropriations calendar for Tuesday, April 17 at 7:30 a.m.

    Since this summary, the bill passed a Special Order Second Reading with amendments.

    Summaries of other featured bills can be found here.

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    SB 12-159: Evaluations of Children Receiving Home and Community Based Services for Autism and Annual Review

    April 3, 2012 by Leave a Comment

    On March 19, 2012, Sen. Evie Hudak and Rep. Jim Kerr introduced SB 12-159 – Concerning the Evaluation of Home- and Community-Based Services for Children with Autism Under the Medicaid Waiver Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill clarifies that evaluation of children receiving long-term care services and supports through the Medicaid autism waiver program must occur at the time the child begins receiving services and when services terminate, as well as regularly during the course of services. The evaluations must include norm-referenced and standardized assessment of the child’s expressive and receptive communication, the child’s adaptive skills, including self-help skills, and the child’s maladaptive behavior, including self-injurious and aggressive behavior.

    The department of health care policy and financing shall annually review the balance in the Colorado autism treatment fund to determine whether additional eligible children may receive services and supports under the program.

    As part of its regular review of Medicaid waivers, the department shall review the waiver to determine if the program eligibility criteria are sufficient to ensure that services and supports under the program are being directed toward children with significant intellectual or adaptive impairment in addition to a diagnosis of autism.

    The department shall conduct an evaluation of the program and the children served through the program that must include information about the improvement in communication and adaptive behavior of children receiving services and supports. The department may contract with an independent program evaluator to review individual treatment evaluations.

    The bill clarifies that moneys in the fund may be used for the evaluation of children receiving services through the program, as well as for the evaluation of the program.

    The bill is scheduled in the Health And Human Services Committee on April 4 Upon Adjournment.

    Summaries of other featured bills can be found here.

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    HB 12-1281: Creation of the Medicaid Payment Reform and Innovation Pilot Project

    April 3, 2012 by Leave a Comment

    On February 7, 2012, Rep. Dave Young introduced HB 12-1281 – Concerning a Pilot Program Establishing New Payment Methodologies in Medicaid. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill directs the department of health care policy and financing to facilitate collaboration among Medicaid providers, clients, advocates, and payors that is designed to improve health outcomes and patient satisfaction and support the financial sustainability of the Medicaid program. The executive director of the state department may promulgate rules relating to the collaborative process.

    The bill creates the Medicaid payment reform and innovation pilot program in the state department for the purpose of implementing payment reform projects in Medicaid within the framework of the accountable care collaborative. Regional care collaborative organizations (RCCOs) may submit payment proposals to the state department for the pilot program. A RCCO shall work with providers and managed care entities in the RCCO to develop the payment project. Payment projects may include but are not limited to global payments, risk adjustment, risk sharing, and aligned payment incentives. The state department shall select payment projects for inclusion in the pilot program based upon certain criteria and shall give preference to those payment projects that propose global payments. The state department shall respond to RCCOs concerning payment projects that are not selected for the pilot program, stating the reason why the payment projects were not selected and shall copy the response to certain committees of the general assembly. Payment projects shall be implemented for 2 to 5 years, and certain provisions apply to payments under the pilot program. The state department shall seek any federal authorization necessary to implement the pilot program. The state department shall report to certain committees of the general assembly concerning the design, implementation, and outcome of the pilot program.

    The bill requires the state department to report concerning the state department’s recommendations for streamlining and simplifying the administrative structure for managing contracts relating to Medicaid managed care.

    On February 21, the Health and Environment Committee referred the unamended bill to the Appropriations Committee.

    Since this summary, the House Appropriations Committee amended the bill and referred it to the House Committee of the Whole.

    Summaries of other featured bills can be found here.

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