April 26, 2017

Colorado Court of Appeals: 42 U.S.C. § 1983 is Not State Employers’ Liability Law

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Safety National Casualty Corp. on Thursday, March 9, 2017.

42 U.S.C. § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.

A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 U.S.C. § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.

On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.

Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Fine to Employer for Workers’ Compensation Insurance Lapse Unconstitutional As Applied

The Colorado Court of Appeals issued its opinion in Dami Hospitality, LLC v. Industrial Claim Appeals Office on Thursday, February 23, 2017.

Dami Hospitality, LLC, operates a motel in Denver, Colorado. For a period in 2006, Dami failed to carry workers’ compensation insurance. It paid the $1,200 fine and obtained insurance. In 2014, the Division of Workers’ Compensation informed Dami that it was again without workers’ compensation insurance and had been for periods during 2006 and 2007, as well as from September 2010 through the date of the division’s notice. Dami admitted receiving the Division’s June 28, 2014, notice, but denied receiving a notice the Division contended it had mailed four months earlier. Dami obtained the necessary insurance by July 9, 2014, but did not otherwise respond to the Division’s letter.

The Division imposed a fine of $841,200 based on C.R.S. § 8-43-409(1)(b)(II) and 7 CCR 1101-3 (Rule 3-6). Dami’s owner, Soon Pak, sent a letter to the Director captioned “Petition to Review,” asking the Director to reconsider the fine. Ms. Pak claimed that she relied on her insurance agent to obtain the necessary insurance and believed the hotel’s insurance policies contained workers’ compensation coverage. She also asserted that the fine was more than her business grossed in a year and it would bankrupt both the hotel and her individually. Ms. Pak’s insurance agent also submitted a letter claiming personal responsibility for the lapse in coverage. In a supplemental order, the Director again ordered Dami to pay the fine, asserting that the previous lapse in coverage should have put Dami on notice as to the need for insurance.

Dami appealed to the Industrial Claim Appeals Panel, which ruled that the Director had failed to consider the factors in Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005), to protect against constitutionally excessive fines. On remand, without taking additional evidence, the Director reinstated his original fine, concluding that Rule 3-6 inherently incorporated the Associated Business Products factors. Dami again appealed, but this time ICAO upheld the Director’s order. Dami appealed to the Colorado Court of Appeals.

The court of appeals first considered whether Dami was deprived of procedural due process. Dami argued that notice by mail was unreasonable, and that a hearing should have been held before the fine was imposed. The court of appeals disagreed. Dami did not request a prehearing conference when it received the first notice of the lapse in insurance, and Dami did not show that the address the Division had on file was incorrect. Therefore, the court found that Dami was not denied procedural due process.

Dami next contended that the $841,200 fine was constitutionally excessive in violation of the Eighth Amendment. Dami argued that section 8-43-409 is unconstitutional on its face because the General Assembly removed a penalty cap in 2005 and failed to impose a statutory deadline for notice of missing insurance coverage, which therefore granted the Director “complete discretion regarding the timing of notice and thus the size of the fine.” The court of appeals found no facial constitutional error, noting that other penalty statutes have been upheld despite a lack of cap or statutory deadline.

However, the court of appeals agreed with Dami that the penalty was unconstitutional as applied because the Director abused his discretion in applying the Associated Business Products factors to Dami’s situation. Dami also argued that the fine is grossly disproportionate both to its ability to pay and to the harm caused by the lack of workers’ compensation insurance. It asserts the Director should also have considered its ability to pay when weighing the constitutionality of the fine. The court of appeals again agreed that the fine was unconstitutional as applied.

The court of appeals evaluated whether Eighth Amendment protections apply to corporations, and determined that Dami’s status as a corporation did not deprive it of Eighth Amendment protections. The court cited Citizens United for the premise that individual constitutional protections can apply to corporations.

Evaluating the particular fine, the court of appeals determined that the Director abused his discretion in imposing the fine because he did not make specific findings regarding the Associated Business Products factors. The court of appeals found that the uncontroverted facts put Dami at the low end of the reprehensibility scale, since Ms. Pak relied on her insurance agent to supply all necessary insurance coverage and the agent admitted he had not informed Ms. Pak about workers’ compensation insurance. The court also found that because Dami had not had a single workers’ compensation claim in its existence and it had fewer than ten employees, there was no actual harm from Dami’s lack of workers’ compensation insurance and low risk of potential harm. The court noted that the record lacked any evidence of comparable fines because the Division failed to supply it, but the information Dami supplied showed that in FY 2006-2007 the total amount of fines for failure to carry insurance “would be $200,000.” The court of appeals also recognized that the Director should have considered Dami’s ability to pay before imposing the fine.

The court of appeals remanded for reconsideration of the excessive fine in light of the Associated Business Products factors.

Colorado Supreme Court: No Personal Jurisdiction Over Out-of-State Employer in Workers’ Comp Case

The Colorado Supreme Court issued its opinion in Youngquist v. Miner on Tuesday, February 21, 2017.

Workers’ Compensation—Personal Jurisdiction—Specific Jurisdiction.

In this case, the Colorado Supreme Court considered whether Colorado has jurisdiction to award benefits for out-of-state work-related injuries and impose a statutory penalty on an employer under C.R.S. § 8-41-204 when the employer is not a citizen of Colorado and has no offices or operations in Colorado but hired a Colorado citizen within the state. The court concluded that under the facts of this case, Colorado lacks personal jurisdiction over the employer and therefore the employer cannot be subject to the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

HB 17-1119: Providing a Workers’ Compensation Payment Mechanism for Uninsured Employers

On January 20, 2017, Reps. Tracy Kraft-Tharp & Lang Sias and Sens. Jake Tate & Cheri Jahn introduced HB 17-1119, “Concerning the Payment of Workers’ Compensation Benefits to Injured Employees of Uninsured Employers.”

The bill creates the ‘Colorado Uninsured Employer Act’ to create a new mechanism for the payment of covered claims to workers who are injured while employed by employers who do not carry workers’ compensation insurance. The bill creates the Colorado uninsured employer fund, which consists of penalties from employers who do not carry workers’ compensation insurance.

The bill creates the uninsured employer board to establish the criteria for the payment of benefits, to set rates, to adjust claims, and to adopt rules. The board is required to adopt, by rule, a plan of operation to administer the fund and to institute procedures to collect money due to the fund.

The bill was introduced in the House and assigned to the Business Affairs and Labor Committee.

Top Ten Programs and Homestudies of 2016: Employment Law and Workers’ Compensation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today we are featuring the Top Ten Programs and Homestudies in Employment Law and Workers’ Compensation. In addition to this sampling of programs and homestudies, CBA-CLE offers several other great books and programs for both employment law and workers’ compensation.

10. Non-compete Agreements, Confidentiality Agreements, and Other Restrictions on Employee Competition
When and how should restrictive covenants like non-compete agreements be used? Can they be enforced? How broad can they be? Should the employer try to enforce them? Is a non-solicit agreement subject to the same rules? Can you sue the new employer? Is there any way to protect the company from “raiding?’ Can I hire a person who has signed a non-compete? Can employees prepare to compete while they are still on my payroll? Are employees free to do what they want after they leave if they do not have a non-compete? Are customer lists trade secrets? Why do I need more than a confidentiality agreement? When is injunctive relief likely to be granted or rejected? What can I expect in non-compete trade secret litigation? These and many other questions are explored in this practical program for all those who draft, enforce or seek to avoid restrictive employment covenants. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

9. Workplace Discrimination
Join the debate Between the ACLU and Focus on the Family on the Intersection of Religious Freedom and Workplace Anti-Discrimination Laws; Federal Court Judge Christine Arguello WIll Moderate a Panel of State Court Judges from across Colorado Who Will Answer Your Questions Concerning How Individual Districts are Preparing for the Potential Increase of Employment Discrimination Case Filings; Be a Fly on the Wall: Find out What Goes on in the Other Room During a Mediation Moderated by Honorable Michael Hegarty, Magistrate Judge, United States District Court for the District of Colorado; and much more. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

8. Workers’ Compensation Basics: Learn How the System Works
Workers’ compensation is a highly specialized area of the law. It is full of detail and nuance that you have to be aware of if you want to be successful. If you would like to add this area to your practice, register for this program today, so you can lay the groundwork on foundational concepts like medical benefits, indemnity and compensability. Additionally, two judges’ panels and essential ethics rules in workers’ compensation arena are included. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

7. Workers’ Compensation Fall Update 2016
If you practice workers’ compensation law in Colorado, the CBA-CLE Workers’ Compensation Fall Update is the place to be. Register now so you can get the latest information from the Division and the Office of Administrative Courts. Get a thorough understanding of joint replacements, the DIME process, and unemployment insurance in the workers’ compensation context. Get the inside track on the Division’s website, and a tour of Medicaid in the workers’ compensation world. Finally, get a clear understanding of your ethical role when it comes to IMEs. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

6. Whistleblower Litigation, Discrimination, and the First Amendment: Employment Law Fall Update
Is sworn testimony outside of one’s ordinary job duties entitled to First Amendment protection? The United States Supreme Court decided this and related issues in Lane v. Franks, and the case will be discussed at the Fall Program. Federal and state whistleblower litigation has been in the headlines. Not only will a judge from the Merit Systems Protection Board be speaking on The Federal Whistleblower Protection Act, but a national panel will be gathered to discuss what employment lawyers need to know about state law qui tam claims. Also, as the American work force ages, never has the issue of age discrimination been more important. Get the most up-to-date information on the ADEA, and hear discussion on a changed discrimination doctrine for our changed social paradigm. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits.

5. The Amended Colorado Anti-Discrimination Act: Best Practices for Small Employers
The Colorado Anti-Discrimination Act (“CADA”) was recently amended to provide enhanced remedies for employees who experience discrimination. Unlike the federal anti-discrimination laws, CADA applies to employers of all sizes, including your firm. Do you know how to prevent and address complaints of discrimination within your firm? This program covers the scope of CADA including the administrative exhaustion process; defenses; and damages, and review best practices for all employers, both to prevent and address claims, including a discussion of real-life examples. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

4. Key Strategies for your Practice: Employment Law Fall Update
Your day begins with TWO tracks! One for attorneys who are new to the area of labor and employment, and one track if you have some experience under your belt. For the New Lawyer’s Track, learn what employment law state and federal statutes are key to your labor and employment law practice from two of the most experienced law professors in the State. Then enjoy a “how-to” workshop on client intake, complete with a YouTube video! On the Advanced Track, get up to speed on the aspects of representing clients in the marijuana industry: the ethics, the payroll, and other employment-related challenges. Finish the morning on the Advanced Track by discovering the nuances in the use of electronic evidence in an employment law case. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

3. Hot Topics in Employment Litigation: Managing High-profile Cases, Implicit Bias, and Other Issues
The practice of law has never been busier. Listen to Jay Tiftickjian’s insights to get some sanity from the myriad of demands that practicing law makes on us. One of these many demands is implicit bias in the courtroom and on your juries. Join the discussion on how to overcome these prejudices in your employment law cases. A highlight of the day will be the panel presentation on managing high-profile cases in the press! Join reporters from all of the major networks, who will give you the information you need to have when you get a case that’s in the news. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 2 ethics credits.

2. Staying Ahead of the Changes: Workers’ Compensation Spring Update 2016
The Planning Committee has been bringing you incomparable CLE programs, and the 2016 Spring Update does not disappoint. As always, get an up-to-the-minute Case Law Update. There is always something new to know about Medicare Set-Asides, so this topic is included on the agenda. Have you ever wondered why the Division of Workers’ Compensation does certain things? Get a glimpse behind the curtain! Then tune in for changes to Rule 9 from the perspectives of the claimant, the respondents and the bench. The all-important medical topic for the Spring Update is about the changes to the upper and lower extremity medical treatment guidelines. Finally, the head of the Office of Attorney Regulation talks about a possible new model of self-regulation in Colorado. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

1. Proactively Prepare for What Lies Ahead: Employment Law Conference 2016
Whether you practice from the plaintiff or defense perspective… Are a solo practitioner or are a member of a large firm… Whether you are new to employment law or a seasoned professional… Choose the Litigation Track, the Counseling Track, or a combination of the two… Your experienced and knowledgeable faculty will give you balanced and comprehensive reviews of cutting-edge topics, regulations, and the most recent cases for you and your clients. Order the CD homestudy here and the MP3 here. Available for 17 general credits, including 1 ethics credit.

Colorado Supreme Court: Workers’ Compensation Insurer Not Required to Provide Notice of Cancellation to Certificate Holder

The Colorado Supreme Court issued its opinion in Pinnacol Assurance v. Hoff on Monday, June 27, 2016.

Workers’ Compensation Insurance—Promissory Estoppel—Certificates of Insurance—Notice of Cancellation.

The Supreme Court considered whether an insurer had a contractual or statutory obligation to notify a non-insured holder of a certificate of insurance when the insurance policy evidenced by the certificate was cancelled. Because the certificate said notice of cancellation “will be delivered in accordance with the policy provisions” and the insurance policy did not promise notice to certificate holders, the Court concluded that the insurer had no contractual obligation to provide notice of cancellation to the certificate holder. The Court further concluded that no provision or public policy contained in the Workers’ Compensation Act required the insurer to provide such notice. Therefore, the Court reversed the judgment of the Court of Appeals.

Summary provided courtesy of The Colorado Lawyer.

Bills Requiring Electronic Recording of Certain Interrogations, Promoting Employment for Disabled Individuals, and More Signed

On Friday, June 10, 2016, Governor Hickenlooper signed 96 bills into law, and allowed one to pass to the Secretary of State without a signature. In the 2016 legislative session, the governor signed 371 bills, vetoed two, and allowed two to pass without a signature this legislative session. The bills signed Friday are summarized here.

  • HB 16-1014 – Concerning the Creation of the Business Intelligence Center Program Within the Department of State, by Rep. Angela Williams and Sen. Jack Tate. The Secretary of State’s Office currently operates a Business Intelligence Center under its Business and Licensing Division to streamline access to public data and provide resources to make the data more useful. This bill formally creates the BIC in statute and authorizes the department’s operation of the program.
  • HB 16-1021 – Concerning Providing the Opportunity to Collect Identifying Information from Applicants for State-Issued Cards, by Rep. Joseph Salazar and Sens. Jessie Ulibarri & Ellen Roberts. The bill requires the DMV to modify the application process for state ID cards and drivers’ licenses, requiring the revised application to allow applicants to self-identify their race or ethnicity.
  • HB 16-1031 – Concerning a Requirement that Legislative Council Staff Present a Study of the Transportation Commission Districts of the State to the Transportation Legislation Review Committee, by Rep. Terri Carver and Sen. John Cooke. The bill requires that the Legislative Council Staff with the cooperation of the Colorado Department of Transportation submit a report to the Transportation Legislation Review Committee no later than August 1, 2016, that details changes since the last time the Transportation Commission districts were modified.
  • HB 16-1034 – Concerning Emergency Medical Responder Registration in the Department of Public Health and Environment, and, in Connection Therewith, Making an Appropriation, by Rep. Lang Sias and Sen. Leroy Garcia. The bill renames “first responders” as “emergency medical responders” and requires the Colorado Department of Public Health and Environment to begin a voluntary registration program on July 1, 2017.
  • HB 16-1056 – Concerning a Requirement that the Holder of an Abandoned Motor Vehicle Use the Records of a National Title Search to Notify Persons with an Interest in the Motor Vehicle that the Vehicle has been Towed and is Subject to Sale, and, in Connection Therewith, Making an Appropriation, by Rep. Max Tyler and Sens. Randy Baumgardner & Nancy Todd. The bill broadens the records search employed by the Department of Revenue to locate owners and lienholders of abandoned motor vehicles.
  • HB 16-1077 – Concerning the Recreation of the Statutory Revision Committee, and, in Connection Therewith, Making an Appropriation, by Rep. Dominick Moreno and Sen. Beth Martinez Humenik. The statutory revision committee was initially created in 1977 to investigate statutory defects, but was repealed in 1985. This bill recreates the eight-member committee in the Legislative Department and establishes guidelines for committee selection, composition, and procedures.
  • HB 16-1080 – Concerning Assault by Strangulation, and, in Connection Therewith, Making an Appropriation, by Reps. Mike Foote & Lois Landgraf and Sens. John Cooke & Michael Johnston. The bill classifies strangulation with the intent to cause serious bodily injury as first degree assault, and strangulation with intent to cause bodily injury as second degree assault. The bill designates second degree assault by strangulation as an extraordinary risk crime, thus increasing the maximum presumptive sentence range.
  • HB 16-1112 – Concerning the Creation of the Training Veterans to Train Their Own Service Dogs Pilot Program, and, in Connection Therewith, Making an Appropriation, by Rep. Lois Landgraf and Sen. Larry Crowder. The bill creates the Training Veterans to Train Their Own Service Dogs Pilot Program in the Department of Human Services. The program will identify up to ten eligible veterans to pair with dogs selected by qualified trainers. Program participants will foster, train, and ultimately use the dogs as their own service or companion animals.
  • HB 16-1117 – Concerning a Requirement that Custodial Interrogations Related to Investigations for Certain Serious Felonies be Electronically Recorded, and, in Connection Therewith, Making an Appropriation, by Reps. Daniel Kagan & Lori Saine and Sens. Irene Aguilar & John Cooke. The bill requires law enforcement officials who are investigating a class 1 or 2 felony or a felony sexual assault to make an audio-video recording of custodial interrogations occurring in a permanent detention facility.
  • HB 16-1160 – Concerning the Continuation of the Surgical Assistant and Surgical Technologist Registration Program, and, in Connection Therewith, Making an Appropriation, by Reps. Joann Ginal & Chuck Longtine and Sen. Jack Tate. The bill extends the sunset of the regulation of surgical assistants and surgical technologists until September 1, 2021.
  • HB 16-1172 – Concerning the Reestablishment of a Standing Efficiency and Accountability Committee by the State Transportation Commission, and, in Connection Therewith, Expanding the Membership and Responsibilities of the Committee, Subjecting the Committee to Sunset Review, Requiring a Committee Member to Disclose a Personal or Private Interest that Could be Affected by a Proposed Committee Recommendation and Abstain from Any Committee Vote to Adopt or Reject the Recommendation, and Making an Appropriation, by Reps. Lori Saine & Dianne Primavera and Sens. Chris Holbert & Tim Neville. The bill requires the Transportation Commission to reestablish the standing Efficiency and Accountability Committee under the Colorado Department of Transportation. It expands committee membership to include four state legislators and representatives of counties, municipalities, nonpartisan good governance organizations, and others as determined by the commission.
  • HB 16-1175 – Concerning the Administration of the Property Tax Exemptions for Qualifying Seniors and Disabled Veterans, and, in Connection Therewith, Making an Appropriation, by Reps. Dianne Primavera & Dan Nordberg and Sens. Cheri Jahn & Tim Neville. The bill requires the sharing of information among state and local government agencies to help identify applicants that do not meet the legal requirements for the Senior and Disabled Veteran Homestead Exemptions.
  • HB 16-1211 – Concerning Licensing Marijuana Transporters, and, in Connection Therewith, Making an Appropriation, by Rep. Jovan Melton and Sens. Randy Baumgardner & Cheri Jahn. The bill creates state medical and retail marijuana transporter licenses to be issued by the Marijuana Enforcement Division in the Department of Revenue, and allows for the issuance of a local medical marijuana transporter license. A marijuana transporter provides logistics, distribution, and storage of medical and retail marijuana and marijuana-infused products, but is not authorized to sell marijuana under any circumstances.
  • HB 16-1222 – Concerning Increasing the Availability of Supplemental Online Education Resources, and, in Connection Therewith, Creating the Statewide Supplemental Online and Blended Learning Program and Making an Appropriation, by Reps. Bob Rankin & Max Tyler and Sens. Nancy Todd & Owen Hill. The bill creates the Supplemental Online and Blended Learning Program and requires that the Colorado Department of Education designate a Board of Cooperative Educational Services to design and articulate a statewide plan for supplemental online and blended learning, and to lead, manage, and administer that statewide program.
  • HB 16-1232 – Concerning Continuation of the Authority of the Executive Director of the Department of Revenue to Issue Written Responses Upon the Request of a Taxpayer, by Rep. Tracy Kraft-Tharp and Sen. Randy Baumgardner. The bill continues the authority of the Department of Revenue to issue general information letters and private letter rulings through September 1, 2023.
  • HB 16-1234 – Concerning the Consideration of Methods for Selecting State Assessment Alternatives that Maintain the Existing State Assessment Requirements, and, in Connection Therewith, Making an Appropriation, by Reps. Gordon Klingenschmitt & Jonathan Singer and Sens. Michael Merrifield & Vicki Marble. The bill requires that the Colorado Department of Education investigate methods for and costs of creating or selecting new state assessments in mathematics, English language arts, science, and social studies.
  • HB 16-1260 – Concerning Extending the Criminal Statute of Limitations for a Sexual Assault to Twenty Years, by Rep. Rhonda Fields and Sens. John Cooke & Michael Johnston. The bill extends the criminal statute of limitations for felony sexual assault to 20 years. The sexual assault offenses covered by the bill may be class 2, 3, or 4 felonies, depending on the circumstances.
  • HB 16-1261 – Concerning Continuation of the Colorado Retail Marijuana Code, and, in Connection Therewith, Implementing the Recommendations of the 2015 Sunset Report Issued by the Department of Regulatory Agencies and Making an Appropriation, by Rep. Dan Pabon and Sens. Cheri Jahn & Randy Baumgardner. The bill extends the sunset of the Colorado Retail Marijuana Code until September 1, 2019, and makes several changes regarding licensing, rulemaking, industry operations, county-initiated ballot measures, and criminal provisions.
  • HB 16-1262 – Concerning Measures to Improve Peace Officer Hiring, and, in Connection Therewith, Requiring Employment Waivers as Part of the Background Check Process for a Person Applying for a Position as a Peace Officer who has Worked as an Officer and Giving the P.O.S.T. Board the Authority to Deny Certification to an Applicant who Entered into a Deferred Agreement, by Rep. Angela Williams and Sen. John Cooke. The bill requires that each candidate for a peace officer position execute a waiver to allow a hiring state or local law enforcement agency or the Department of Revenue to obtain all records about that candidate from another law enforcement or governmental agency. The hiring agency, including higher education law enforcement agencies, public transit law enforcement agencies, and the Department of Revenue, must submit the waiver to each applicable prior employer at least 21 days before making a decision.
  • HB 16-1263 – Concerning Updates to the Statutory Prohibition on Profiling by Peace Officers, by Rep. Angela Williams and Sen. Jessie Ulibarri. The bill modifies the prohibition in current law against racial profiling by law enforcement by changing the definition to include the practice of relying on race, ethnicity, gender, national origin, language, religion, sexual orientation, gender identity, age, or disability in determining probable cause or scope of investigation.
  • HB 16-1264 – Concerning Prohibiting the Use of a Chokehold by a Peace Officer, by Rep. Jovan Melton and Sen. Michael Johnston. The bill clarifies that a peace officer may only use a chokehold when he or she reasonably believes that it is necessary to defend himself or herself or a third party is in imminent danger of death or serious bodily injury or to effect an arrest or prevent escape under certain conditions.
  • HB 16-1265 – Concerning Expungement of Arrest Records Based on Mistaken Identity, by Reps. Jovan Melton & Daneya Esgar and Sens. Michael Johnston & John Cooke. The bill requires the court to expunge the arrest and criminal records of a person who was arrested as a result of mistaken identity and who did not have charges filed against him or her.
  • HB 16-1286 – Concerning an Increase in the Percentage of a Landowner’s Costs Incurred in Performing Wildfire Mitigation Measures that may be Claimed by the Landowner for Purposes of the Wildfire Mitigation Income Tax Deduction, by Rep. KC Becker and Sen. Jack Tate. The bill increases the percentage of the wildfire mitigation state income tax deduction from 50 percent to 100 percent of the costs incurred for performing wildfire mitigation on a taxpayer’s property.
  • HB 16-1311 – Concerning Court Orders Requiring Payment of Monetary Amounts, by Rep. Joseph Salazar and Sens. Morgan Carroll & Vicki Marble. When a court imposes a sentence requiring a defendant to pay a monetary amount, the court may make arrangements for payment at a future date or in installments and must provide certain instructions to defendants. The bill specifies that these same rules apply when the court enters a judgment or issues an order requiring payment. The bill also specifies that when imposing a monetary obligation, the court must inform the defendant that if he or she is unable to pay, the court may not jail the defendant for failure to pay.
  • HB 16-1321 – Concerning Medicaid Buy-In for Persons Eligible for Certain Medicaid Waivers, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Michael Merrifield & Jack Tate. The bill directs the Department of Health Care Policy and Financing to seek federal authorization to implement a Medicaid buy-in program for adults who are eligible to receive home-and community-based services under the Supported Living Services Medicaid waiver, the Brain Injury waiver, and the Spinal Cord Injury waiver pilot program. HCPF must implement the Medicaid program no later than three months after receiving federal approval.
  • HB 16-1324 – Concerning the Availability of Compounded Pharmaceutical Drugs for Use by a Veterinarian to Treat a Patient’s Emergency Condition, and, in Connection Therewith, Making an Appropriation, by Rep. Joann Ginal and Sen. Jerry Sonnenberg. The bill allows a veterinarian to keep an office stock of compounded drugs and administer the drug to an animal for treatment of the animal’s emergency condition.
  • HB 16-1328 – Concerning Statutory Provisions Related to the Use of Seclusion on Individuals, and, in Connection Therewith, Making an Appropriation, by Reps. Pete Lee & Beth McCann and Sens. Kent Lambert & Kevin Lundberg. The bill expands the “Protection of Individuals from Restraint and Seclusion Act.” The bill adds seclusion wherever the use of restraint is limited, prohibited, or subject to specific requirements; adds that restraint and seclusion must never be used as punishment, as part of a treatment plan, as retaliation by staff, or for protection, unless ordered by the court or in an emergency; and expands the restrictions on use of restraint and seclusion to include youth, defined as anyone less than 21 years old.
  • HB 16-1339 – Concerning Agricultural Property Foreclosures, by Reps. Perry Buck & Joann Ginal and Sen. Randy Baumgardner. Under current law, the number of calendar days that must elapse between the date of the foreclosure notice and the foreclosure sale is between 110 and 125 days for residential property, and between 215 and 230 days for agricultural property. Current law requires that agricultural property be entirely agricultural in foreclosure proceedings. This bill allows property that is any part agricultural to be considered agricultural and entitled to the longer time frame.
  • HB 16-1345 – Concerning the Continuation of the Sex Offender Management Board, and, in Connection Therewith, Implementing the Recommendations of the 2015 Sunset Report Issued by the Department of Regulatory Agencies, by Rep. Daniel Kagan and Sen. John Cooke. The bill extends the sunset of the Sex Offender Management Board until September 1, 2019, and requires the board to revise its standards and guidelines.
  • HB 16-1356 – Concerning Requirements Related to the Satisfaction of Indebtedness Secured by Real Property, by Reps. Tracy Kraft-Tharp & Kevin Nordberg and Sens. Cheri Jahn & Chris Holbert. The bill modifies the treatment of a line of credit lien secured with real property (i.e. a home equity line of credit) that has been satisfied. Under the bill, the lien continues and no release is required until the line of credit expires and the debt is satisfied, unless the debtor relinquishes all right to make further use of the line of credit by either requesting, in writing, that the line of credit be cancelled; or provides notice that the property is being conveyed upon payment of the debt.
  • HB 16-1359 – Concerning the Use of Medical Marijuana While on Probation, by Rep. Joseph Salazar and Sen. Lucia Guzman. The bill alters one of two exceptions to the prohibition against a court requiring that a person on probation refrain from possessing or using medical marijuana.
  • HB 16-1360 – Concerning the Continuation of the Regulation of Direct-Entry Midwives by the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations Contained in the Sunset Report Prepared by the Department, by Rep. Lois Landgraf & Susan Lontine and Sen. Kevin Lundberg. The bill extends the sunset of the regulation of direct-entry midwives until September 1, 2023, and makes several changes to the scope of practice for direct-entry midwives.
  • HB 16-1362 – Concerning the Transfer of the Functions of the License Plate Auction Group to the Colorado Disability Funding Committee, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Beth Martinez Humenik. The bill transfers the functions of the License Plate Auction Group to the Disability Benefit Support Contract Committee and renames the entity the Colorado Disability Funding Committee.
  • HB 16-1363 – Concerning Rule-Making Authority for Medical Marijuana Advertising Directed at Underage Persons, by Rep. Jonathan Singer and Sens. Linda Newell & Jack Tate. The bill authorizes the Marijuana Enforcement Division in the Department of Revenue to promulgate rules related to advertising that is likely to reach underage persons under the Medical Marijuana Code.
  • HB 16-1367 – Concerning the Re-Categorization of Certain Counties for the Purpose of Determining Salaries Paid to County Officers in Those Counties, by Reps. Millie Hamner & Bob Rankin and Sens. Mary Hodge & Vicki Marble. The salary of county officers is set in statute and determined by the category of the county in which the officer serves (I through VI). Four subcategories, A through D were added to each category in 2015 under Senate Bill 15-288 for the purpose of increasing or decreasing county officer salaries. All counties are currently in subcategory A, which would result in a 30 percent increase to county officers beginning January 2019, when they are sworn in. This bill recategorizes counties resulting in smaller increases for the elected officers of those counties.
  • HB 16-1378 – Concerning Requiring Courts to Collect Money from DUI Offenders for the Purpose of Reimbursing Law Enforcement Agencies for the Cost of Performing Chemical Tests, by Rep. Joann Ginal and Sen. Larry Crowder. The bill clarifies that, when the court orders that a defendant reimburse the costs associated with the collection and analysis of chemical tests, the court is required to collect those moneys and transfer them to the law enforcement agency that performed the chemical test, except that the court is not required to do this for the Colorado State Patrol within the Department of Public Safety.
  • HB 16-1386 – Concerning a Program to Cover Vulnerable Populations’ Costs of Acquiring Necessary Documents, and, in Connection Therewith, Making an Appropriation, by Rep. Tracy Kraft-Tharp and Sen. Pat Steadman. The bill creates the Necessary Document program in the Office of Health Equity in the Colorado Department of Public Health and Environment. The purpose of the program is to help Colorado residents who are victims of domestic violence, impacted by a natural disaster, low-income, disabled, homeless, or elderly pay the fees to acquire a necessary document, includingsocial security cards, driver’s licenses, identification cards, or a vital statistics report.
  • HB 16-1391 – Concerning a Prohibition Against Nonattorneys Providing Legal Services Related to Immigration Matters, by Rep. Dan Pabon and Sen. Kevin Lundberg. The bill makes it a deceptive trade practice for anyone other than a licensed attorney or someone federally authorized to represent others in immigration matters to provide or to offer to provide legal services in an immigration matter.
  • HB 16-1393 – Concerning Procedures for Ordered Testing for Communicable Diseases, by Reps. Daneya Esgar & Michael Foote and Sen. John Cooke. Under current law, any person bound over for trial for assault; convicted of assault; or found to have provided bodily fluids to another person indicted, bound over for trial, or convicted of assault is required to submit to a medical test for communicable diseases if his or her bodily fluids came into contact with a victim, peace officer, firefighter, emergency medical care provider, or emergency medical service provider. This bill repeals that portion of current law and replaces it with a requirement that, unless a person has admitted that he or she has a communicable disease and provides confirmation, a law enforcement agency is required to ask the person to voluntarily consent to a blood test if certain conditions are met.
  • HB 16-1398 – Concerning the Requirement that the Department of Human Services Use a Request-for-Proposal Process to Contract with an Entity to Implement Recommendations of the Respite Care Task Force, and, in Connection Therewith, Making an Appropriation, by Reps. Dave Young & Lois Landgraf and Sens. Beth Martinez Humenik & Pat Steadman. The bill requires the Department of Human Services to use a competitive request-for-proposal process to select a contractor to implement the recommendations of the Respite Care Task Force. The selected contractor must have a presence in Colorado and serve individuals with disabilities or chronic conditions by providing and coordinating respite care.
  • HB 16-1402 – Concerning a Prohibition on the Use of a Device to Allow a Person to Place a Wager on a Previously Run Sporting Event, by Reps. KC Becker & Polly Lawrence and Sens. Chris Holbert & Leroy Garcia. The bill prohibits the state or any local government, or its agencies, boards, commissions, or officials from permitting the use of a racing replay and wagering device. Horse racing and related business licensees may not operate or allow any person to use racing replay and wagering devices to wager on any previously run sporting event.
  • HB 16-1404 – Concerning the Regulation of Fantasy Contests, and, in Connection Therewith, Making an Appropriation, by Reps. Crisanta Duran & Cole Wist and Sens. John Cooke & Lucia Guzman. The bill establishes the registration of small fantasy contest operators and the licensure of all other large fantasy contest operators by the Division of Professions and Occupations in the Department of Regulatory Agencies. The bill defines a fantasy contest operator as an entity that offers a fantasy contest with an entry fee and cash prize to the public.
  • HB 16-1422 – Concerning Financing Public Schools, and, in Connection Therewith, Making an Appropriation, by Reps. Millie Hamner & Bob Rankin and Sens. Kent Lambert & Pat Steadman. The bill changes the “Public School Finance Act of 1994” by modifying the funding for K-12 public schools in FY 2016-17. The bill increases base per pupil funding to $6,367.90, to reflect a 1.2 percent inflation rate.
  • HB 16-1423 – Concerning Measures to Maximize Trust in the Use of Student Data in the Elementary and Secondary Education System, by Reps. Paul Lundeen & Alec Garnett and Sen. Owen Hill. The bill creates the Student Data Transparency and Security Act, and requires that the State Board of Education, the Colorado Department of Education, and schools, school districts, and Boards of Cooperative Educational Services take actions to increase the transparency and security of student personally identifiable information.
  • HB 16-1424 – Concerning Qualifications for the Administration of Medications in Facilities, and, in Connection Therewith, Making an Appropriation, by Rep. Ed Vigil and Sen. Leroy Garcia. The bill changes the way state agencies handle the training and registration of personnel authorized to administer medications in certain state facilities, and changes the definition of “facility” to include services offered to intellectually and developmentally disabled individuals by the Department of Health Care Policy and Financing.
  • HB 16-1425 – Concerning the Requirement for a Licensed Child Care Center to Obtain Records for a Child Enrolled in the Center on a Short-Term Basis, by Rep. Millie Hamner and Sen. Ellen Roberts. The bill specifies that a licensed child care center is not required to obtain immunization records for any enrolled child that attends the center on a short-term basis which is defined as up to fifteen days and no more than twice per year with at least 60 days between 15-consecutive-day periods.
  • HB 16-1426 – Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal, by Reps. Dianne Primavera & Yeulin Willett and Sens. Jack Tate & Cheri Jahn. The bill creates a class 2 petty offense for the intentional misrepresentation of entitlement to an assistance animal, for purposes of obtaining a reasonable accommodation in housing or for the misrepresentation of a service animal or service animal in training for purposes of obtaining a reasonable accommodation.
  • HB 16-1427 – Concerning Exempting Multi-Serving Liquid Retail Marijuana Products from the Sales Equivalency Limitation, by Rep. Dan Pabon and Sen. Owen Hill. The bill exempts multi-serving liquid retail marijuana products from the edible retail marijuana requirement that products be marked with a standard symbol indicating that the product contains marijuana and is not for consumption by children if the product complies with all statutory and regulatory packaging requirements for multi-serving edibles.
  • HB 16-1432 – Concerning the Rights of Private Sector Employees to Inspect Their Personnel Files, by Rep. Faith Winter and Sen. Owen Hill. The bill requires that an employer, at least annually, permit a requesting current or former employee to inspect and obtain a copy of his or her personnel file.
  • HB 16-1436 – Concerning a Prohibition on Edible Marijuana Products that are Shaped in a Manner to Entice a Child, by Reps. Dan Pabon & Joann Ginal and Sens. Linda Newell & Randy Baumgardner. The bill requires the Marijuana Enforcement Division in the Department of Revenue  to promulgate rules that prohibit the production and sale of edible medical marijuana-infused and retail marijuana products shaped like a human, animal, or fruit.
  • HB 16-1439 – Concerning the Creation of a New Alcohol Beverage License Under the “Colorado Liquor Code” to Permit a Lodging and Entertainment Facility to Sell Alcohol Beverages by the Drink for Consumption on the Licensed Premises, and, in Connection Therewith, Allowing the Holder of a Tavern License to Convert the Tavern License to a Lodging and Entertainment License or Other Appropriate License Under Specified Conditions, by Rep. Alec Garnett and Sen. Chris Holbert. The bill creates a new lodging and entertainment liquor license for facilities that provide lodging, sports, or entertainment activities as their primary business and, incidental to that business, sell and serve alcoholic beverages by the drink for consumption on the premises. These facilities must have sandwiches and light snacks available for consumption.
  • HB 16-1440 – Concerning Reducing Administrative Requirements that Pertain to the Elementary and Secondary Public Education System, by Reps. Jim Wilson & Brittany Pettersen and Sens. Michael Johnston & Chris Holbert. The bill prohibits the State Board of Education or the Colorado Department of Education from publishing the teacher effectiveness ratings for a grade level, subject area, school, or school district if the number of teachers in the reported group is small enough to enable a person to identify an individual teacher’s effectiveness rating.
  • HB 16-1442 – Concerning Technical Modifications to Laws Enacted in 2014 Governing the Administration of Nonpartisan Elections Conducted by a Local Government that are Not Coordinated by a County Clerk and Recorder, by Rep. Su Ryden and Sen. Jessie Ulibarri. The bill makes various updates to the Colorado Local Government Election Code, which governs nonpartisan special district elections that are not coordinated by a county clerk.
  • HB 16-1448 – Concerning the Relative Guardianship Assistance Program, by Rep. Jonathan Singer and Sens. Andy Kefalas & Kevin Lundberg. The makes several changes to the Relative Guardian Assistance Program to comply with federal regulations and clarify the qualifying legal relationships and situations that are eligible for the program. Specifically, the bill clarifies that relatives, kin, and other persons with a family-like relationship, including foster parents, are eligible for relative guardianship assistance in certain situations when a child or children cannot be returned to the physical custody of parents or legal guardians and adoption or reunification is either unavailable or not appropriate.
  • HB 16-1451 – Concerning a Requirement that the Department of Personnel Create a Procurement Code Working Group to Study Ways to Improve the State’s “Procurement Code,” by Reps. Su Ryden & Bob Rankin and Sens. Ray Scott & Rollie Heath. The bill directs the executive director of the Department of Personnel and Administration to convene a working group to meet during the 2016 interim between legislative sessions to study ways to improve the state procurement code.
  • HB 16-1457 – Concerning a Clarification of the Existing Sales and Use Tax Exemption for Residential Energy Sources, by Reps. Alec Garnett & Jim Wilson and Sens. Tim Neville & Leroy Garcia. The bill clarifies that the state sales and use tax exemption for residential uses of electricity, coal, wood, gas, fuel oil, and coke (energy sources) applies when energy sources are resold or sold to persons who are not occupants of the residence.
  • HB 16-1459 – Concerning an Increase in the Dollar Threshold for the Review of Capital Construction or Capital Renewal Projects that are Not for New Construction or New Acquisitions of Real Property for Auxiliary and Academic Facilities to be Funded Solely from Cash Funds Held by an Institution of Higher Education, by Reps. KC Becker & J. Paul Brown and Sens. Jerry Sonnenberg & Andy Kefalas. Under current law, higher education institutions may submit lists of capital construction projects anticipated to be commenced within the next two years using institutional cash funds, and costing more than $2 million, to the Capital Development Committee for review and approval. This bill increases the threshold for projects reviewed through two-year cash lists from $2 million to $10 million for everything but acquisitions, new construction, and projects financed using the state’s credit rating.
  • HB 16-1460 – Concerning the Authority of the Commissioner of Agriculture to Dispose of and Acquire Specified Real Property in Furtherance of the Department of Agriculture’s Office Consolidation, by Reps. KC Becker & Ed Vigil and Sen. Randy Baumgardner. The bill gives the Colorado Department of Agriculture, in consultation with the Office of the State Architect within the Department of Personnel and Administration, the authority to sell and acquire real property specified in the bill.
  • HB 16-1467 – Concerning a State Income Tax Deduction for Amounts Earned on the Investment of Money in a First-Time Homebuyer Savings Account, by Reps. Crisanta Duran & Joseph Salazar and Sens. Mark Scheffel & Beth Martinez Humenik. The bill allows for the creation of first-time home buyer savings accounts, and starting tax year 2017, allows an income tax deduction for account holders equal to the interest and other income earnings on account contributions.
  • SB 16-006 – Concerning the Use of Qualified Insurance Brokers to Enroll Eligible Participants in Health Benefit Plans through the Colorado Health Benefit Exchange, by Sen. Beth Martinez Humenik and Rep. Lang Sias. The bill requires the Colorado health benefit exchange, Connect for Health Colorado, to provide certain information about insurance brokers and health care navigators when consumers contact Connect for Health Colorado and request assistance.
  • SB 16-019 Concerning a Requirement that Court-Ordered Mental Condition Examinations be Recorded, and, in Connection Therewith, Making an Appropriation, by Sen. John Cooke and Reps. Lori Saine & Mike Foote. The bill requires audio-visual recording of court-ordered mental condition examinations for individuals charged with class 1 or 2 felonies and felony sex offenses under sections 18-3-402, 18-3-404, 18-3-405, and 18-3-405.5, C.R.S. The court is required to notify a defendant that any examination with a psychiatrist or forensic psychologist may be audio and video recorded.
  • SB 16-030 – Concerning the Surcharges for Violating Motor Vehicle Weight Limits, and, in Connection Therewith, Making an Appropriation, by Sen. Mary Hodge and Rep. Max Tyler. Under current law, individuals convicted of violating motor vehicle weight limits or the terms of overweight permits must pay a variable penalty and a surcharge, depending on the level of excess weight. The bill changes the variable surcharge rate to a flat 16 percent of the penalty for all violations.
  • SB 16-036 – Concerning Surety Requirements when a Taxpayer Appeals a Tax Bill that the State or a Local Government Claims is Due, and, in Connection Therewith, Making an Appropriation, by Sens. Tim Neville & Cheri Jahn and Reps. Tracy Kraft-Tharp & Lang Sias. The bill changes the circumstances under which a taxpayer is required to set aside money when he or she files a notice of appeal of a tax decision with a court. The bill repeals the requirement that a taxpayer set aside money for all appeals to a district court, except in cases of a frivolous tax claim submission as determined by the Department of Revenue.
  • SB 16-040 – Concerning Changes to the Requirements for Owners of a Licensed Marijuana Business, and, in Connection Therewith, Making an Appropriation, by Sens. Chris Holbert and Rep. Dan Pabon. The bill replaces the current statutory definition for owner of a licensed medical or retail marijuana business with two new ownership categories: direct beneficial interest owners  and indirect beneficial interest owners.
  • SB 16-056 – Concerning Broadening Protections of the State Whistleblower Protection Law for State Employees Who Disclose Confidential Information to Certain State Entities that have Legal Requirements to Preserve the Confidentiality of the Information Disclosed, by Sen. Kent Lambert and Rep. Pete Lee. The bill expands whistleblower protections by creating whistleblower review agencies to determine if information about state operations or conduct provided by a state employee is protected from inspection under the Colorado Open Records Act, or any other provision of law.
  • SB 16-062 – Concerning Modifications to the Regulation of Veterinary Pharmaceuticals, by Sen. Vicki Marble and Reps. Jon Becker & Ed Vigil. The bill creates the Veterinary Pharmaceutical Advisory Committee in the Department of Regulatory Agencies to hear matters concerning veterinary pharmaceuticals referred by the State Board of Pharmacy, specifically related to board action on an investigation or complaint, application review, and rules.
  • SB 16-065 – Concerning Criminal Restitution, by Sen. Pat Steadman and Rep. Pete Lee. The bill modifies the treatment of restitution for criminal offenses. Specifically, it clarifies that a restitution order is in effect until paid in full or until two years after the offender’s death. Two years after the presentation of the defendant’s original death certificate to the clerk of court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, after notice, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution. This termination does not affect an associated judgment against another defendant.
  • SB 16-077 – Concerning a Collaborative Multi-Agency Approach to Increasing Competitive Integrated Employment Opportunities for Persons with Disabilities, and, in Connection Therewith, Advancing an Employment First Policy, by Sen. Andy Kefalas and Reps. Joann Ginal & Dianne Primavera. The bill outlines policies designed to increase employment opportunities for persons with intellectual and developmental disabilities. The bill specifies five agency partners—the Colorado Department of Labor and Employment, the Department of Health Care Policy and Financing, the Department of Education, the Department of Higher Education, and the Department of Human Services—that must work together to identify employment and educational opportunities for persons with disabilities.
  • SB 16-106 – Concerning Measures to Facilitate the Efficient Administration of Colorado Laws Governing Campaign Finance, by Sen. Chris Holbert and Rep. Joseph Salazar. The bill requires an Administrative Law Judge that hears campaign finance complaints to complete four credit hours of continuing legal education annually. The four credit hours must be related to election or campaign finance law and must be certified by the Colorado Supreme Court.
  • SB 16-111 – Concerning Authorizing the Colorado Mounted Rangers as Certified Reserve Peace Officers, by Sen. Kent Lambert and Rep. Paul Lundeen. The bill creates the Peace Officer Authority Colorado Mounted Rangers Study Task Force. This task force must study and make recommendations regarding whether it is appropriate for the Colorado Mounted Rangers to receive peace officer standards and training.
  • SB 16-115 – Concerning an Electronic Filing System for Documents Recorded with a County Clerk And Recorder, and, in Connection Therewith, Creating the Electronic Recording Technology Board, which is an Enterprise; Authorizing the Board to Set an Additional Filing Surcharge for a Five-Year Period; Requiring Counties to Transmit the Proceeds of the Board’s Surcharge to the State for Deposit in a Cash Fund Administered by the Board; Requiring the Board to Make Grants from the Fund to Counties to Create, Maintain, Improve, or Replace Electronic Filing Systems; Establishing Reporting Requirements for the Board; Increasing a Local Filing Surcharge; and Making an Appropriation, by Sen. Beth Martinez Humenik and Reps. Dominick Moreno & Kathleen Conti. The bill creates the Electronic Recording Technology Board to issue revenue bonds.
  • SB 16-116 – Concerning the Creation of an Alternative Simplified Process for the Sealing of Criminal Justice Records Other than Convictions, and, in Connection Therewith, Making an Appropriation, by Sen. Michael Johnston and Reps. Pete Lee & Steve Lebsock. The bill provides a simplified process for sealing criminal justice records. Whenever a defendant is acquitted, completes a diversion agreement or a deferred sentence, or whenever a case against a defendant is dismissed, the court must give an eligible defendant the option to immediately seal criminal justice records. The defendant may make an informal motion in open court at the time of dismissal or acquittal or may later file a written motion.
  • SB 16-131 – Concerning the Management of Assets for Individuals, and, in Connection Therewith, Clarifying that a Fiduciary’s Authority is Suspended after a Fiduciary Receives Notice that a Petition for the Fiduciary’s Removal has been Filed, Protecting an Adult Ward or Protected Person’s Right to an Attorney Post-Adjudication, and Preventing a Fiduciary from Paying Court Costs or Fees from out of an Estate after Receiving Notice of an Action for the Fiduciary’s Removal, by Sen. Jack Tate and Reps. Dan Pabon & Yeulin Willett. The bill reorganizes and updates the probate code and laws governing the management of an individual’s assets. It clarifies when an unprobated will may be used as part of a proceeding and that judgment and decree will convey legal title as opposed to equitable title.
  • SB 16-140 – Concerning Certificates of Title Issued for Motor Vehicles Purchased from Motor Vehicle Dealers, by Sen. Jerry Sonnenberg and Rep. Tracy Kraft-Tharp. The bill provides an affirmative defense that a dealer has taken reasonable action to deliver or facilitate the delivery of the certificate of title within 30 days if the dealer has, at a minimum processed and mailed any required loan payoffs; contacted the prior lender and taken the necessary action to obtain the vehicle’s title or duplicate title, which must be free of liens; taken any action necessary to obtain information or signatures from the prior owner; submitted all paperwork that the dealer has obtained to the county clerk; and corrected any errors in any filings with the DOR in a reasonable amount of time.
  • SB 16-143 – Concerning a Reduction in Annual Liquor Licensing Fees for Specified Licensees, by Sen. Owen Hill and Rep. Dan Pabon. The bill changes the amounts for annual license fees for a distillery or rectifier manufacturer’s license and for a wholesaler’s liquor license.
  • SB 16-145 – Concerning an Alternative Mechanism for Creating a Subdistrict of the Colorado River Water Conservancy District, by Sens. Randy Baumgardner & Kerry Donovan and Reps. Dianne Mitsch Bush & Yeulin Willett. The bill provides an alternative method for the Colorado River Water Conservation District to form subdistricts.
  • SB 16-147 – Concerning Creating the Colorado Suicide Prevention Plan to Reduce Death by Suicide in the Colorado Health Care System, by Sens. Linda Newell & Beth Martinez Humenik and Rep. Brittany Pettersen. The bill establishes the Colorado suicide prevention plan within the Office of Suicide Prevention in the Colorado Department of Public Health and Environment. Through system-level implementation in the criminal justice and health care systems, the plan is intended to reduce suicide rates in Colorado.
  • SB 16-156 – Concerning Certain Legislative Oversight Committees, and, in Connection Therewith, Modifying the Manner in Which Members are Appointed to the Committees, Allowing Temporary Appointments to the Committees, and Specifying that the Chair and Vice-Chair of the Executive Committee of the Legislative Council Also Serve as Chair and Vice-Chair of the Legislative Council, by Sens. Mark Scheffel & Lucia Guzman and Reps. Crisanta Duran & Brian DelGrosso. Under current law, legislators are appointed to the Legislative Audit Committee, Committee on Legal Services, and the Legislative Council by either the President of the Senate or Speaker of the House and are approved by a majority of members in either the House of Representatives or the Senate. The bill specifies that the appointing authority for each of the three applicable committees may make appointments to temporarily replace a current committee member.
  • SB 16-163 – Concerning a Study of an Organizational Recoding of Title 12 of the Colorado Revised Statutes Governing Professions and Occupations, and, in Connection Therewith, Making an Appropriation, by Sen. Michael Johnston and Rep. Daniel Kagan. The bill requires the Office of Legislative Legal Services to study a recodification of Title 12 of the Colorado Revised Statutes, which contains state laws regulating professions and occupations. OLLS must solicit input, including estimates of the fiscal impact, from the Judicial Department, specified state agencies, local governments with regulatory authority, representatives of the regulated professions and occupations, and the public.
  • SB 16-164 – Concerning Clarification that a Private Probation Supervision Provider can File Legal Process Against a Probationer Under His or Her Supervision, by Sen. John Cooke and Rep. Pete Lee. The bill allows a private probation provider to issue a summons and file a complaint with the court for a defendant under his or her supervision.
  • SB 16-165 – Concerning the Requirements for an Insurance Company to be Deemed to Maintain a Home Office or Regional Home Office in This State for Purposes of the Tax on Insurance Premiums Collected by the Insurance Company, by Sen. Kevin Grantham and Rep. Dave Young. The bill expands the criteria that an insurance company may satisfy in order to qualify for a reduced insurance premium tax rate. Specifically, it removes the requirement that companies that maintain significant direct insurance operations perform specific operational functions in Colorado in order to qualify for the lower insurance premium tax paid by companies with home offices or regional home offices in Colorado.
  • SB 16-166 – Concerning the Creation of Transportation Fuel Distributors’ Tax Liens, by Sen. Laura Woods and Rep. Daniel Kagan. The bill allows a fuel distributor to file a lien against a fuel retailer for any unreimbursed gasoline and special fuel taxes that the distributor pays to the Department of Revenue. It also establishes the priority for the lien and requirements for filing and enforcing the lien.
  • SB 16-167 – Concerning a Reduction in the Severance Tax Occupational Fund Reserve for the 2016-17 Fiscal Year, by Sen. Kevin Grantham and Rep. Bob Rankin. Under current law, the reserve requirement for the Severance Tax Operational Fund for a given fiscal year is equal to total operating appropriations for Tier 1 programs and 15 percent of Tier 2 transfers. This bill reduces the portion of the reserve requirement based on the Tier 1 programs by $2.98 million for FY 2016-17 only.
  • SB 16-172 – Concerning the Election by a Person to Receive Electronic Notification of Certain Information from a County Relating to a Pending Property Tax Dispute, by Sen. Laura Woods and Reps. Max Tyler & Perry Buck. Under current law, a county board of equalization must mail notices of hearings and decisions to the petitioner’s who dispute property tax valuations made by the county assessor. This bill allows a board of county commissioners to pass ordinances allowing for notices of hearings for the abatement and refund of taxes, notices of hearings for petitions for appeal, and decisions related to these hearings to be emailed or faxed to the petitioner or the petitioner’s agent.
  • SB 16-173 – Concerning Authorization for Golf Cars to Cross State Highways in Order to Use a Local Road as Authorized by Local Authorities, by Sen. Rollie Heath and Rep. KC Becker. The bill allows a local authority to authorize a person driving a golf car on a local road to cross a state highway at an at-grade crossing in order to continue traveling on the local road.
  • SB 16-178 – Concerning the Grand Junction Regional Center Campus, by Sens. Kent Lambert & Andy Kefalas and Reps. Dave Young & J. Paul Brown. The bill directs the Department of Human Services, within the parameters of certain guiding principles related to relocating individuals receiving services on the campus to home-like settings of their choosing, to vacate the Grand Junction Regional Center campus and list the campus for sale no later than July 1, 2018.
  • SB 16-179 – Concerning Improvements to the Processes Used by the Department of Labor and Employment Regarding the Employment Classification of an Individual for Purposes of Unemployment Insurance Eligibility, and, in Connection Therewith, Making an Appropriation, by Sens. Ellen Roberts & Rollie Heath and Reps. Brian DelGrosso & Pete Lee. The bill directs the Colorado Department of Labor and Employment to develop guidance on and establish a position to serve as a resource for employers on the proper classification of workers for unemployment insurance purposes, audit findings, and options for appealing or curing an audit.
  • SB 16-180 – Concerning a Specialized Program Within the Department of Corrections for Certain Offenders who were Convicted as Adults for Offenses They Committed as Juveniles, and, in Connection Therewith, Making an Appropriation, by Sens. Laura Woods & Cheri Jahn and Reps. Daniel Kagan & Kim Ransom. The bill requires the Department of Corrections to create a specialized program for offenders who committed a felony as a juvenile and were sentenced as an adult.
  • SB 16-181 – Concerning the Sentencing of Persons Convicted of Class 1 Felonies Committed While the Persons Were Juveniles, by Sens. Laura Woods & Cheri Jahn and Reps. Daniel Kagan & Timothy Dore. The bill allows for juvenile offenders who were sentenced to a life sentence without the possibility of parole for a class 1 felony committed as a juvenile between July 1, 1990, and July 1, 2006, to petition the court for a resentencing hearing. It specifies factors that can be considered in order to make a finding of the presence of extraordinary mitigating circumstances, such as the offender’s age and maturity level at the time of the crime, and his or her capacity for rehabilitation.
  • SB 16-183 – Concerning a Clarification of the General Assembly’s Intent to Maintain the Public Utilities Commission’s Authority Over Basic Emergency Services while Prohibiting the Regulation of Internet-Protocol-Enabled Services by Defining the Term “Basic Emergency Service” in a Manner that is Consistent with Such Intent, and, in Connection Therewith, Making an Appropriation, by Sens. Mark Scheffel & Andy Kerr and Reps. Angela Williams & Polly Lawrence. The bill clarifies that the Public Utilities Commission in the Department of Regulatory Agencies has no regulatory authority over the originating service providers of basic emergency service.
  • SB 16-186 – Concerning Disclosure Requirements to be Applied to Small-Scale Issue Committees Under Colorado Law Governing Campaign Finance, and, in Connection Therewith, Making an Appropriation, by Sen. Jack Tate and Rep. Susan Lontine. The bill defines a small-scale issue committee as an issue committee that has accepted or made contributions or expenditures in an amount that does not exceed $5,000 during an applicable election cycle for the purpose of supporting or opposing any ballot issue or question. This bill amends the disclosure, reporting, and registration requirements for small-scale issue committees under the Fair Campaign Practices Act.
  • SB 16-197 – Concerning the Retail Sale of Alcohol Beverages, and, in Connection Therewith, Restricting the Issuance of New Liquor-Licensed Drugstore and Retail Liquor Store Licenses Except Under Specified Circumstances; Allowing Liquor-Licensed Drugstore and Retail Liquor Store Licensees to Obtain Additional Licenses Under Limited Circumstances; Repealing the Limit on the Alcohol Content of Fermented Malt Beverages on January 1, 2019; and Making an Appropriation, by Sen. Pat Steadman and Reps. Angela Williams & Dan Nordberg. The bill makes several changes to laws related to the licensing of liquor-licensed drugstores and retail liquor stores licensed with the Liquor Enforcement Division within the Department of Revenue. Click here to read the governor’s press release about this bill.
  • SB 16-199 – Concerning Programs of All-Inclusive Care for the Elderly, and, in Connection Therewith, Determining the Capitated Rate for Services and Creating an Ombudsman for Participants in Programs of All-Inclusive Care for the Elderly, and Making an Appropriation, by Sens. Ray Scott & Pat Steadman and Reps. Brian DelGrosso & Joann Ginal. The bill requires that contracts between the Department of Health Care Policy and Financing and organizations providing a program of all-inclusive care for the elderly include the negotiated monthly capitated rate for services. The rate must be less than the amount that would have been paid for services to the PACE participant under the regular Medicaid state plan if the person were not enrolled in PACE.
  • SB 16-208 – Concerning Maintaining the Same Funding Calculation for a Charter School that Converts from a District Charter School to an Institute Charter School or from an Institute Charter School to a District Charter School, by Sen. Owen Hill and Reps. Angela Williams & Lang Sias. The bill clarifies that if a district charter school converts to an institute charter school, or an institute charter school converts to a district charter school, the converted school’s funding is still calculated using the formula that applied to the school before the conversion.
  • SB 16-217 – Concerning Measures to Expedite the Litigation of Workers’ Compensation Claims, by Sen. Owen Hill and Rep. Angela Williams. The bill establishes new requirements concerning the reduction of workers’ compensation payments in cases that involve an admission of liability by an employer and propose to reduce the amount of compensation paid to a claimant.
  • SB 16-218 – Concerning Matters Related to State Severance Tax Refunds, by Sens. Kent Lambert & Pat Steadman and Reps. Millie Hamner & Bob Rankin. The bill addresses a severance tax refund obligation arising as a result of the Colorado Supreme Court’s April 25, 2016, decision in BP America v. Colorado Department of Revenue. The bill creates a mechanism for refunds of severance tax revenue to businesses, including businesses that revise their severance tax returns to claim additional tax deductions for tax years 2012 through 2015.

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

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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

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

Workers’ Compensation—Firefighters—Statutory Presumptions.

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

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

Summary provided courtesy of The Colorado Lawyer.

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

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

Workers’ Compensation—Firefighters—Statutory Presumptions.

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

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

Summary provided courtesy of The Colorado Lawyer.

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

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

Workers’ Compensation—Firefighters—Statutory Presumptions.

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

Summary provided courtesy of The Colorado Lawyer.

 

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

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

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

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

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