August 19, 2019

Archives for February 20, 2014

Winds of Change (Part 2): When Change Becomes Transformation

rhodesIt’s been a windy winter in Colorado. As I write, the wind is once again blowing in another cold front.

Wind signals change. Change is The Docket dedicating an issue to wellness. Change is when law schools initiate wellness programs, when Lawyer Assistance Programs adopt new, broader missions (see my last post), when bar association leaders appeal to lawyers to watch out for each other. Plus some of the other developments I’ll write about in this series.

Sometimes all that’s going on is a mere change in the weather, literally or metaphorically. But sometimes change is only the start, a precursor to something bigger. That something bigger is not just change, it’s transformation. Transformation is when all those smaller changes suddenly stop adding up and start to multiply. Put enough small changes together, and you have a trend. Put a few trends together, and you have a movement. Let the movement gain momentum, and you have transformation.

Change is rarely welcome but usually manageable. Not so with transformation. Transformation is change that’s gotten out of hand. It’s the locomotive that can’t be stopped, the simple act of personal conscience that erupts into social upheaval. Change presents new ideas to be tolerated and accommodated. Transformation is when you wake up one day and wonder how did it ever come to this.

Judging from the research I’ve been doing in connection with this series, I believe the legal profession is on the cusp of transformation. We’ll see, but if so, then we’re currently only in the change phase, and the big one is yet to come.

If and when it does, we’re going to need a more dramatic, drastic metaphor to make sense of it. Psychologist James Hillman writes that “symbols of transformation (as birth, growth, transitions of place and time) all openly indicate a next stage. They present this next stage before the present one is over. They unfold new possibilities, affording hope.”

So far so good, but watch out for what comes next. Hillman goes on to say that transformation is experienced as nothing less than death, which makes death the ultimate transformation metaphor. And the “The death experience,” Hillman warns, “never feels like a transition. It is the major transition which, paradoxically, says there is no future. The end has come. It is all over, too late.”

Consider, for example, the practices chronicled in The Lawyer Bubble that brought several BigLaw firms down. It’s easy to read about it and feel detached and say those firms got what they deserved. But curiously, not all of them did; some continue to skate along, apparently unscathed. Such is the nature of death:  the scythe swings for one but not another. And such is the nature of transformation:  confusing, disorienting, unfair, inexplicable.

Transformation asks more of us than we’ve got to give. For some, that will be too much. We’ll talk about that next time.

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at

Bills Regarding Water Law, Elections, County Assessor Reports, and More Signed by Governor

On Tuesday, February 18, and Wednesday, February 19, 2014, Governor Hickenlooper signed six bills into law. He has, to date, signed seven bills.

  • HB 14-1164 – Concerning Nonpartisan Elections Not Coordinated by a County Clerk and Recorder, and, in Connection Therewith, Creating the “Colorado Local Government Election Code” for the Conduct of Such Elections by Special Districts, Harmonizing Residency Requirements for Voter Registration, Modifying the “Colorado Municipal Election Code of 1965,” and Clarifying When Elections are Coordinated by County Clerk and Recorders, by Rep. Dickey Lee Hullinghorst and Sen. Jessie Ulibarri. The bill creates the Colorado Local Government Election Code to govern the conduct of nonpartisan elections by special districts that are not coordinated by a county clerk. Signed by Governor Hickenlooper on February 18, 2014.
  • HB 14-1053 – Concerning the Authority of the Commissioner of Insurance to Adopt Rules to Ensure Consistent Requirements for Pediatric Dental Benefits in Health Benefit Plans Offered in Colorado Regardless of the Method by Which a Plan is Purchased, by Rep. Beth McCann and Sen. Irene Aguilar. The bill allows the Commissioner of Insurance to promulgate rules in order to ensure that pediatric dental benefits are consistent regardless of whether the insurance is purchased inside or outside the Colorado Health Benefit Exchange. Signed by Governor Hickenlooper on February 19, 2014.
  • HB 14-1027 – Concerning the Clarification of the Definition of a Plug-In Electric Motor Vehicle, by Rep. Randy Fischer and Sen. Matt Jones. The bill clarifies that plug-in electric vehicles are those that can be recharged by an external source. The clarification is intended to assist county clerks and recorders in collecting a $50 fee for plug-in electric motor vehicles. Signed by Governor Hickenlooper on February 19, 2014.
  • HB 14-1020 – Concerning the Consolidation of Two Reports on Taxable Property that County Assessors Submit to their Boards of Equalization, by Rep. Steve Lebsock and Sens. David Balmer and Jeanne Nicholson. The bill requires that county assessors combine annual reports on taxable real property and taxable personal property, and also specifies that the reports must be submitted on or before July 15 each year. Signed by Governor Hickenlooper on February 19, 2014.
  • SB 14-026 – Concerning the Removal of Certain Statutory Printing Requirements for Information Provided by the Division of Water Resources, by Sen. Mary Hodge and Rep. Edward Vigil. The bill eliminates printing requirements for certain reports, which allows these reports to be submitted electronically. It also allows the Division of Water Resources to respond electronically to requests from the public. Signed by Governor Hickenlooper on February 19, 2014.
  • SB 14-007 – Concerning Authority for a Board of County Commissioners to Transfer County General Fund Moneys to its County Road and Bridge Fund After a Declared Disaster Emergency in the County, by Sens. Kevin Lundberg and Matt Jones and Reps. Mike Foote and Brian DelGrosso. The bill allows a board of county commissioners to transfer money from the general fund to disaster response, particularly repair of roads and bridges, when an emergency disaster is declared in a county. Signed by Governor Hickenlooper on February 19, 2014.

For a complete list of Governor Hickenlooper’s 2014 legislative decisions, click here.

Tenth Circuit: In Death Penalty Case, Amended Opinion Filed; Request for En Banc Consideration Denied

The Tenth Circuit Court of Appeals published its opinion in Cole v. Trammell on Tuesday, February 18, 2014.

This matter was before the court on Appellant’s Petition for Rehearing and Request for En Banc Consideration. Rehearing was granted in part by the panel assigned to this matter originally. An amended opinion was attached to the order, and rehearing was granted to the extent of the amendments found on pages 36-39. The original opinion filed on November 18, 2013 was withdrawn, and the amended version was substituted as the decision of the court. The summary of the November 18, 2013 opinion is available here.

The petition for rehearing and request for en banc consideration were also transmitted to all of the judges of the court who were in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the request for en banc consideration was denied.

Tenth Circuit: DOI Attorney’s Convictions of CFR Violations Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Baldwin on Tuesday, February 18, 2014.

Charles Baldwin drove out of the Denver Federal Center at his workday’s end. While still on the Federal Center grounds, Commander Kevin Lundy stopped Mr. Baldwin’s truck because he’d seen him speeding and swerving to avoid a bicyclist, and he wanted to issue a warning. But before Commander Lundy could finish the warning, Mr. Baldwin drove off, ignoring shouted commands to stop. In response, Commander Lundy took to his police car and followed Mr. Baldwin off the Federal Center’s grounds, stopped him again, and asked for his driver’s license, registration, and proof of insurance.

According to Commander Lundy, Mr. Baldwin refused to comply and had to be forced from his vehicle and restrained with handcuffs. Commander Lundy issued various tickets and allowed Mr. Baldwin to go on his way.

After a bench trial before a federal magistrate judge, the court convicted Mr. Baldwin of three offenses. Two of these offenses — failing to comply with the lawful direction of a Federal police officer and impeding or disrupting the performance of a government employee’s official duties — were premised on federal regulations 41 C.F.R. § 102-74.385 and 41 C.F.R. § 102-74.390(c). The third — attempting to obstruct a peace officer — was based on Colorado state law and the Assimilative Crimes Act. Because Mr. Baldwin was an attorney for the Department of Interior, he appealed his convictions acting as his own lawyer.

Mr. Baldwin first argued that violating these two federal regulations wasn’t a crime, which were no more than administrative rules or policies. By some scratching, the court found that Congress did expressly authorize the General Services Administration and then the Department of Homeland Security to establish regulations for the protection and administration of property owned or occupied by the Federal Government and to prescribe “reasonable” penalties of “not more than 30 days” in prison and fines in the amounts allowed by Title 18.

Even if the regulations impose criminal penalties, Mr. Baldwin argued their terms were so vague they violated the Constitution’s due process guarantee. Criminal offenses must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. It’s clear from the terms of regulations that, whatever else they do or don’t proscribe, driving off while a uniformed officer is busy issuing a warning, and doing so over the officer’s instructions to stop, counts as disobeying that person’s directions and disrupting performance of his official duties. The regulations could perhaps be successfully challenged as impermissibly vague as applied in other situations, but under the law as it stands today, the court failed to see how they might be in this situation.

Next, Mr. Baldwin argued the regulations violated the Constitution’s due process guarantee because the regulations lack any mens rea requirement. However, neither 41 C.F.R. § 102-74.385 nor 41 C.F.R. § 102-74.390 makes any mention of a required mental element to complete the offenses they describe. However, a law’s silence about mens rea doesn’t necessarily mean violating it isn’t a crime, as Mr. Baldwin would have the court conclude. In fact, the courts of the United States have long said they will read criminal statutes as implicitly requiring proof of mens rea even when they don’t require such proof explicitly.

In sum, the evidence surrounding the initial stop easily supported the conclusion that Mr. Baldwin knew his conduct amounted to a disregard of a police officer’s lawful order and disrupted or impeded the officer’s duty on federal grounds.

Finally, Mr. Baldwin challenged the sufficiency of the evidence supporting his third conviction under Colorado law and the Assimilative Crimes Act. Mr. Baldwin was accused of knowingly using “an obstacle” in a “substantial step toward” obstructing or hindering “the preservation of the peace by a peace officer, acting under color of his or her official authority,” while on federal property. The court found that the evidence was sufficient to show all this beyond a reasonable doubt, too. Rather than listen to a warning about how his speeding had endangered others — a warning Commander Lundy tried to issue under color of official authority in order to preserve the peace — Mr. Baldwin sought to use his vehicle as an obstacle to get away (to “obstruct” Commander Lundy’s inquiry). And whatever his status under federal law, Commander Lundy, along with his fellow Federal Protective Service officers, was clearly and expressly treated as a “peace officer” for purposes of Colorado law.

The Tenth Circuit pointed out that Mr. Baldwin’s points were not without some power. But in light of the circumstances, the court was compelled to affirm.


Tenth Circuit: Substantial Evidence Existed to Affirm Imposition of Penalties on Medicare Nursing Facility for Noncompliance with Regulations

The Tenth Circuit Court of Appeals published its opinion in Sunshine Haven Nursing Operations v. United States Department of Heath and Human Services on Friday, February 14, 2014.

Medicare is a federally funded health insurance program for the elderly and disabled. The Secretary of Health and Human Services is charged by Congress with administering the Medicare statute. The Secretary administers Medicare through CMS. Medicare Part A provides coverage to eligible persons for hospital services, including those provided by skilled nursing facilities (SNFs), such as Sunshine Haven Nursing Operations.

An SNF is eligible to enter into a “provider agreement” with CMS to participate in the Medicare program and receive reimbursements for providing covered services. Federal law requires that a skilled nursing facility must operate and provide services in compliance with all applicable federal, state, and local laws and regulations and with accepted professional standards and principles that apply to professionals providing services in such a facility.  “Substantial compliance” is a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm. Noncompliance means any deficiency that causes a facility to not be in substantial compliance. A “deficiency” is a violation of a statutory or regulatory participation requirement.

CMS is charged with overseeing compliance with Medicare’s conditions of participation. Compliance is verified through unannounced inspections, called “surveys,” conducted on behalf of CMS by state survey agencies (SAs). If a participating provider is found to be out of substantial compliance, the SA presents a “Statement of Deficiencies” (SOD) to the facility. To the extent CMS concurs with the identified deficiencies, CMS may impose remedies against the provider. Remedies may include suspension of payment for new services, termination of a facility’s provider agreement, and disapproval for two years of a facility’s nurse aide training and competency evaluation program (NATCEP). If CMS imposes remedies, a provider may request a hearing before an ALJ and administrative review of the ALJ’s decision by the Departmental Appeals Board (DAB).

Sunshine contracted with CMS to provide Medicare services. In 2008, CMS received a complaint from a family member of a resident that Sunshine was not bathing her often enough. In response, CMS arranged for the New Mexico Department of Health to conduct a survey of Sunshine. The SA conducted surveys, found instances of noncompliance, and concluded that Sunshine was not in substantial compliance with conditions of participation. As a result, CMS issued Sunshine a denial of payment for new admissions, terminated Sunshine’s Medicare provider agreement, imposed four per-instance civil monetary penalties (CMPs) totaling $14,000, and withdrew its approval for Sunshine’s NATCEP for two years.

Sunshine sought administrative review. The ALJ found that Sunshine was not in continuous substantial compliance. Sunshine sought review by the DAB, which determined that the ALJ’s findings were supported by substantial evidence. The DAB’s decision is subject to judicial review.

The Tenth Circuit concluded that it had jurisdiction to decide Sunshine’s challenges to the four per-instance CMPs, but did not have jurisdiction over its challenges to the other remedies imposed on Sunshine.

Addressing the CMPs, in February 2009, it was found that one resident’s actions, (“R50’s”) actions toward Resident 6 (R6) constituted sexual abuse and Sunshine took immediate steps to investigate and rectify the situation. This included (but was not limited to) calling the police, who came to Sunshine and warned R50 that he could be arrested for felony assault and to leave the women alone. Sunshine also updated R50’s care plan to specify 30-minute whereabouts checks. Sunshine transferred R50 to another facility on February 5. Between January 4 and February 5, however, Sunshine saw R50 in the hall with R18 five times and the SA saw them together on two other occasions during a survey. On some of these occasions, R50 was holding R18’s hand or kissing her. Each time Sunshine found the two residents together, it separated them.

The regulations specify that each resident has the right to be free from verbal, sexual, physical, and mental abuse. SNFs must take reasonable and effective steps to prevent abusive acts, regardless of their source. CMS found that R50’s assault on R18 constituted physical abuse in violation of the regulations. CMS imposed two $5,000 fines (CMPs). The ALJ found that Sunshine’s interventions were ineffective to prevent Resident 50 from abusing Resident 6 and to prevent several subsequent instances of Resident 50 having contact with Resident 18. The DAB upheld this finding.

The Tenth Circuit concluded that substantial evidence supported the Secretary’s findings of noncompliance underlying the two $5,000 CMPs arising from the February 5, 2009 survey. Because the court affirmed the two $5,000 fines, the Secretary’s disapproval of Sunshine’s nurse aide training and competency evaluation program (NATCEP) was proper because the disapproval of a facility’s NATCEP is mandatory when a CMP is $5,000 or greater.

CMS further determined that Sunshine failed to respond properly to ankle injuries that a 95-year-old resident, R4, which was surveyed on April 2.  Sunshine argued that the deadline to correct the February 5, 2009 deficiency had not yet expired as of the April 2 survey. Accordingly, Sunshine contended, CMS should not have relied on the additional deficiencies cited under the same regulation in the April 2 survey to impose additional CMPs. However, the April 2 surveys were based upon different facts, and the regulations were not designed to insulate facilities that fail to properly care for residents during a period of correction from findings of noncompliance. The Tenth Circuit therefore concluded that the findings and conclusion of noncompliance underlying the CMPs imposed based on the April 2, 2009 survey were supported by substantial evidence.

The court transferred the issues over which it lacked jurisdiction under 42 U.S.C. § 1395cc(h)(1)(A) to the United States District Court for the District of New Mexico.

Colorado Court of Appeals: Announcement Sheet, 2/20/2014

On Thursday, February 20, 2014, the Colorado Court of Appeals issued no published opinion and 27 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.