July 17, 2019

Colorado Court of Appeals: Involuntary Short-term Mental Health Commitment Is Not Equivalent to Court Order

The Colorado Court of Appeals issued its opinion in Interest of Ray v. People on Thursday, February 21, 2019.

Mental Health—Certification for Short-Term Treatment—Physician—National Instant Criminal Background Check System—Firearm Prohibitions—Court Order.

Ray voluntarily sought mental health treatment from a hospital. After he was admitted, a physician certified Ray for involuntary short-term mental health treatment under C.R.S. § 27-65-107, finding that he was a danger to himself or others and would discontinue mental health treatment absent such a certification. That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System (NICS) as a person subject to federal firearm prohibitions. The certifying physician terminated the mental health certification days after it was entered, and Ray was discharged from the hospital. Ray petitioned the probate court for removal from the NICS. The probate court denied the petition.

On appeal, Ray argued that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS. Colorado law requires certain persons and entities to make NICS reports for persons with respect to whom a court has entered an order for involuntary certification for short-term mental health treatment. The plain meaning of the term “court order” does not encompass certification by a professional person. Therefore, the certification made by the physician does not meet the plain definition of a court order.

The order was reversed and the case was remanded for the probate court and the parties to take reasonable steps to cause any record of Ray’s certification submitted by them under CRS § 13-9-123(1)(c) to be rescinded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: All Prospective Guardians Must Undergo Statutory Vetting Process Prior to Appointment

The Colorado Court of Appeals issued its opinion in In re Interest of Arguello on Thursday, February 7, 2019.

Adult Guardianship—Court Visitor—Judicial Appointment of Permanent Guardian—Conflict—Visitor’s Report

Arguello is an adult resident of Pueblo who suffers from dementia, developmental disability, and mental health illness. The court appointed Baslick as emergency guardian when medical decisions needed to be made and family was unavailable. Baslick works for Colorado Bluesky Enterprises, Inc. (Bluesky), which provides Arguello with case management services. Soon after Baslick’s appointment, several individuals petitioned the court to be appointed permanent guardian.

The court appointed a court visitor to prepare a visitor’s report concerning all prospective guardians. The first visitor’s report did not recommend Baslick because of her employment with Bluesky and the existence of a potential conflict of interest under C.R.S. § 15-13-310(4), which precludes a long-term care provider from also serving as a guardian. After several hearings and finding no suitable guardian from among the petitioners, the court sua sponte appointed the Arc of Pueblo (ARC) as the permanent guardian. Bluesky and Baslick moved for reconsideration, and the district court denied the motion.

On appeal, Bluesky argued that it is not a long-term care provider under the statute and the court erred in applying the statutory prohibition to Baslick. Here, while Bluesky may not fall “squarely” within the definition of a long-term care provider, the facts demonstrate a potential conflict of interest between Bluesky and Baslick that rendered her unsuitable as a guardian for Arguello. Bluesky provides substantial assistance to Arguello in the form of case management services. As guardian, Baslick would be able to recommend increased funding for Arguello and thereby generate revenues for Bluesky. She would also have oversight of Bluesky’s case management services and could be hesitant, as a Bluesky employee, to question Bluesky’s actions. Accordingly, the district court’s conclusion is supported by the record, and the court acted within its discretion in finding that Arguello’s best interests would not be served by appointing Baslick.

Bluesky next contended that the court violated the statutory mandate in C.R.S. § 15-14-305(1) by appointing ARC without first appointing a visitor and receiving a report. The court is required to appoint a visitor for every petition for guardianship filed, and all prospective guardians must undergo the statutory vetting process set forth in C.R.S. §§ 15-14-304 and -305 before appointment may occur. The trial court erred in sua sponte appointing a guardian who did not go through this process.

The order appointing ARC as guardian for Arguello was reversed, and the case was remanded to appoint a visitor and follow the statutory procedure to appoint a guardian for Arguello. The order was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Governor’s Order Did Not Expire at End of His Term

The Colorado Court of Appeals issued its opinion in People v. Salgado on Thursday, January 10, 2019.

Powers and Duties of Attorney General—Executive Order—Medicaid Fraud.

In 1987, then-Governor Romer promulgated an executive order (the 1987 Executive Order) requiring the Attorney General, through the Medicaid Fraud Control Unit (MFCU), to investigate and prosecute Medicaid fraud and patient abuse cases. The 1987 Executive Order has never been repealed, rescinded, or modified. In December 2017, the MFCU filed a felony charge involving neglect of an at-risk adult against Salgado, an employee of an assisted living facility. The Jefferson County District Attorney filed a notice asserting that the Attorney General lacked legal authority or jurisdiction to file and prosecute the case. The district court found that Governor Romer had the authority to require the Attorney General to investigate and prosecute Medicaid fraud and patient abuse cases during his terms as governor but that reliance on the 1987 Executive Order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch. It further found that a former governor cannot require the current Attorney General to act. The district court then dismissed the charge.

On appeal, the Attorney General argued that the district court incorrectly found that the 1987 Executive Order had expired at the conclusion of Governor’s Romer’s term. Absent a clear limitation on the effective lifespan of an executive order, or a limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or superseded, and it does not expire simply because the issuing governor is no longer in office. Further, at the time it was promulgated, the 1987 Executive Order was not an act of legislation, and for 30 years the General Assembly has tacitly permitted and funded the MFCU’s operation. Therefore, the 1987 Executive Order directs, and therefore properly authorizes, the Attorney General in his or her own capacity to prosecute cases of Medicaid fraud and patient abuse in Colorado.

The judgment was reversed and the case was remanded for the district court to reinstate the charge against Salgado.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Gives: Metro Volunteer Lawyers Provides Representation to Low-income Coloradans

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Metro Volunteer Lawyers (MVL) is a program of the Denver Bar Association and is co-sponsored by the Adams/Broomfield, Arapahoe, Douglas/Elbert, and First Judicial District Bar Associations. MVL is committed to bridging the gap of access to justice by providing pro bono legal services to people who could not otherwise afford legal assistance.

MVL offers pro bono opportunities to attorneys, especially in the areas of estate planning, guardianships and conservatorships, family law, and consumer law. By volunteering with MVL, attorneys can receive valuable experience while assisting Colorado’s most vulnerable populations with their legal needs. Under C.R.C.P. 260.8, Colorado attorneys providing uncompensated pro bono legal representation may apply for 1 general CLE credit for every 5 billable-equivalent hours of representation, up to a maximum of 9 credits in each 3 year compliance period.

Give your expertise, as well as supporting MVL with a cash donation. Checks may be made out to Denver Bar Foundation. For more information or to donate, contact Tammy Ely via email or by calling (303) 824-5376. You can also submit an online application to volunteer.

Colorado Gives: Legal Aid Foundation Promotes Justice for All

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Civil Legal Aid helps low-income Coloradans solve serious legal problems that threaten their most basic needs. You can make a difference for some of the least fortunate and most vulnerable members of our community by making a Colorado Gives Day donation to the Legal Aid Foundation here.

Contributions to the Legal Aid Foundation support Colorado Legal Services (CLS), which is the only agency in the state that provides free legal services to over 10,000 Coloradans every year, giving priority to the poor, elderly and disabled in the greatest economic and social need. Unfortunately, for every person served by CLS, at least one income-eligible person is turned away because of inadequate resources.

As lawyers, we know first-hand the value and necessity of quality legal representation when faced with a potentially life-changing legal problem.  This is especially true of low-income families, whose basic survival may depend on being able to stay in their home, protect themselves from abuse or exploitation, or secure food and necessary health care.

Making a Colorado Gives Day donation is a quick and easy, and all donations receive a proportional “boost” from a $1 Million Incentive Fund.  Please join lawyers from around the state today to move Colorado closer to fulfilling the American promise of justice for all.

To learn more about the Legal Aid Foundation, please visit www.legalaidfoundation.org.

Colorado Gives: Disability Law Colorado Empowers Individuals and Recognizes the Inherent Value of All People

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.

Colorado Court of Appeals: Medicare Benefits Fall Within Contract Exception to Collateral Source Rule

The Colorado Court of Appeals issued its opinion in Forfar v. Wal-Mart Stores, Inc. on Thursday, August 23, 2018.

Insurance—Collateral Source Rule—Medicare Benefits—Premises Liability.

Forfar, a Medicare beneficiary, slipped and fell at a Wal-Mart store. He filed a premises liability case. Before trial, Wal-Mart moved to exclude evidence of Forfar’s medical expenses owed under agreements he had with his medical providers. Forfar moved in limine to exclude evidence that he had received Medicare benefits. The trial court ruled that Wal-Mart could not present evidence to the jury as to the amount of the Medicare limits and that Forfar could not present evidence of private contracts between himself and any third-party medical providers. Forfar was allowed to present evidence of the reasonable value of medical services, for which he sought $72,636. After trial, Wal-Mart moved to reduce the damages under C.R.S. § 13-21-111.6, arguing that the economic damages awarded for medical expenses should be reduced to Medicare accepted rates. The trial court denied the motion, holding that Medicare benefits fall within the contract exception to the collateral source rule in C.R.S. § 13-21-111.6. The judgment entered on a jury verdict included $44,000 in economic damages for the reasonable value of medical services that Forfar had received.

On appeal, Wal-Mart contended that the trial court should have reduced the damages, arguing that the amounts paid by Medicare are dispositive of the necessary and reasonable value of medical services provided to Forfar. Pre-verdict, the collateral source rule, C.R.S. § 10-1-135(10)(a), bars evidence of collateral source benefits, and the correct measure of damages is the reasonable value of medical services. A benefit is not excluded from the definition of a collateral source simply because it comes from a government program. The trial court properly held Medicare benefits to be a collateral source inadmissible as evidence based on C.R.S. § 10-1-135(10)(a).

Wal-Mart also challenged the trial court’s holding that Medicare benefits fall within the contract exception to the collateral source rule. Post-verdict, the trial court is required to reduce a plaintiff’s verdict by the amount the plaintiff “has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company or fund.” The exception to this prohibits trial courts from reducing a plaintiff’s verdict by the amount of indemnification or compensation that the plaintiff has received from “a benefit paid as a result of a contract entered into and paid for by or on behalf of the plaintiff.” Medicare benefits fall within the contract exception to the collateral source rule of C.R.S. § 13-21-111.6. The trial court properly applied the contract exception to Medicare benefits.

Wal-Mart further contended that the trial court violated the Supremacy Clause by failing to apply the Medicaid statutes and regulations over the collateral source rule, asserting that no person may be liable for payment of amounts billed in excess of Medicare approved charges. The Medicare statutes Wal-Mart relies on do not preempt Colorado law holding it liable for the reasonable value of Forfar’s medical services.

The court of appeals declined to award Forfar attorney fees because the issues presented by Wal-Mart were novel and supported by some out-of-state authority.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Penalty Enhancer Applies to Any Conduct in Furtherance of Offense that Occurs in Close Proximity to Victim

The Colorado Court of Appeals issued its opinion in People v. Trejo Lopez on Thursday, August 23, 2018.

Criminal Law—Theft—At-Risk-Adult—Challenge for Cause—Jury—Presumption of Innocence—Sentence Enhancer.

Defendant and the 70-year-old victim had been neighbors in a mobile home park. While visiting the victim in his trailer, defendant asked to use the bathroom, took a gun that was hanging on the bathroom wall and put it into his backpack, and then left the premises. The jury convicted defendant of theft from an at-risk adult under C.R.S. § 18-6.5-103(5).

On appeal, defendant contended that the trial court erred when it denied his challenge for cause to prospective juror H.S. Defense counsel challenged H.S. for cause because she seemed confused about the presumption of innocence and expressed anti-gun views. H.S.’s comments about the presumption of innocence revealed confusion rather than evinced a bias or inability to follow and apply the law, and she was articulate in explaining her views. When she did not respond to the court’s final questions, it was reasonable for the court to conclude that she would follow the law. Thus, the trial court did not abuse its discretion in denying defendant’s challenge for cause to H.S.

Defendant also contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed any element or portion of the theft in the presence of the victim. Defendant argued that the theft was completed when he took possession of the gun in the bathroom and outside the presence of the victim. C.R.S. § 18-6.5-103 enhances the penalties for theft when any element or portion of the offense is committed in the presence of an at-risk person, which is any person 70 years of age or older. “Portion of the offense” means conduct taken in furtherance of the crime that occurs in temporal proximity to an element of the offense and is physically close to the victim. Here, immediately after taking possession of the gun, defendant left the bathroom and walked a few feet away from the victim as he left the trailer, and defendant spoke with the victim before leaving with the gun. Therefore, defendant committed a portion of the theft in the victim’s presence.

Defendant also argued that the trial court abused its discretion when it rejected his tendered jury instruction on “presence” and declined to issue an alternate instruction defining the term. Providing the jury with defendant’s instruction, which required proof of additional elements not found in the charged crime, would have been an inaccurate instruction. The trial court did not abuse its discretion.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

A Needed Response to 9News’ Misguided Story on Long-Term Care Insurance

Happy Summer everyone! This blog post features a rebuttal from the LTC Forum of Colorado, Inc., in response to a news story on 9News KUSA claiming that long-term care insurance is no longer a valid option for the middle class. The fact is that traditional LTC insurance is best-suited for the middle class!

The 9News story also ignores some of the newest solutions on the market, including life insurance that allows the death benefit to be used for care and hybrid life or annuity policies. Watch for more information on these solutions in my next blog or visit www.AaronEisenach.com for videos explaining these solutions. I can be reached at (303) 659-0755.

On June 12, 2018, 9News KUSA aired a story, “The Death of Long Term Care for the Middle Income Earners,” full of dangerous advice that may lead Coloradoans to costly conclusions based on myths and misunderstandings. The LTC Forum of Colorado, Inc., a non-profit advocacy group that supports and encourages long-term care planning in Colorado, is responding to claims in the story and wishes to set the record straight.

Claim:  Middle income earners (those who earn $87,500 per year) have been priced out of the long-term care market. Average premiums are $6,000 per year, which may be the low end.

Fact:  The annual premium for coverage from the best-selling company in the United States for a 60-year old single female is $3,273.17 per year.  A single male would pay $2,005.51 per year. Assumptions include a $5,000 monthly benefit, a 3-year benefit period, a $180,000 maximum benefit, a 90-day elimination period (similar to a deductible), preferred health rates, and a 3% compound annual inflation protection rider. Note that the inflation rider causes the monthly benefit and the $180,000 maximum benefit to grow each year by 3% of the previous years’ amount. The result is that by age 84, the monthly benefit will provide approximately $10,000 per month for care at home, in an assisted living facility or a nursing home, and the maximum benefit is worth approximately $360,000.

Claim: Premiums could go as high as $9,000 per year because insurance companies are telling current owners they could face a 50% hike at any point just because no one knows where healthcare is going.

Fact: Premiums cannot simply go up at any point. The Commissioner of the Colorado Division of Insurance has the responsibility of approving, denying, or modifying requested increases. Premiums cannot increase due to any one individual’s age, change in health, or due to use of the policy. Premiums can change if the insurance company makes the same change for all person of the same class.

True, long-term care insurance companies have increased premiums on policies sold in the past, mainly due to increasing longevity, low policy lapse rates, and historically low interest rates. To put this into perspective, let’s assume someone purchased a policy 15 years ago, in 2003, for $150 per month and that the premium has doubled to $300 per month. This is still affordable for folks making $87,500 per year. And this is a far cry from the claim that policies are increasing to $9,000 per year, which is equivalent to $750 per month.

In addition, companies offering LTC insurance policies today are including assumptions for low interest rates, very low policy lapse rates, and longevity. And because Colorado is one of more than 40 states that have adopted the National Association of Insurance Commissioners’ LTC Insurance Rate Stability Regulation, Coloradoans have much more regulatory protection from the type of rate increases we have seen in the past.

CLAIM: No one knows where healthcare is going.

FACT: Surely everyone believes that healthcare costs will continue to escalate. However, long-term care costs do not increase nearly at the same rate as health insurance and medical expenses. LTC costs are largely driven by personnel costs and the cost of building brick and mortar facilities. The good news is that more people will stay at home for extended care, often at lower cost than being in a facility, by taking advantage of a growing number of home care agencies and advancing technologies such as robots and sensors.

Claim: Benefits no longer cover all daily expenses.

Fact: People purchasing LTC insurance today can purchase policies with benefits up to $500 per day or $15,000 per month.  Because policies cost more today than in the past, it is now commonplace for consumers to design coverage to cover some, but not all, of the cost of care. For example, if an insured is receiving memory care in an assisted living facility at $7,000 per month, a policy with a $5,000 monthly benefit would cover more than 70% of the cost of care, leaving the policyowner $2,000 out-of-pocket, which is obviously better than $7,000 out-of-pocket. What’s more, a $5,000 monthly benefit would also cover more than five hours of home care every day for a month.

Claim: Many policyholders, because of financial decline or cognitive issues in their later years, let the policies lapse and then they lose everything – the future benefits they were paying for and then all the money they have put in over the years.

Fact: Regarding financial decline: First, only about 1% of LTC insurance policyholders let their policies lapse. This fact is one of the primary reasons premiums have increased.  Fortunately, if an insurance company files and receives approval from Colorado Division of Insurance for a premium increase, policyowners are able to trim benefits in order to lessen a rate increase or avoid the increase altogether. This opportunity is explained to the policyowner so that he or she can make an informed decision.

For nearly two decades now, policies include a built-in Contingent Nonforfeiture Benefit, which allows clients to drop coverage if rate increases exceed pre-prescribed amounts. If coverage is let go, premiums paid over time will be used to pay for future long-term care expenses. In other words, the policy is converted into a paid-up policy.

Regarding the claim that policyowners lapse their coverage due to cognitive issues, there are strong consumer protections against such a situation. The NAIC Long-Term Care Insurance Model Act requires the following:

[A] long-term care insurance policy or certificate shall include a provision that provides for reinstatement of coverage in the event of lapse if the insurer is provided proof that the policyholder or certificate holder was cognitively impaired or had a loss of functional capacity before the grace period contained in the policy expired. This option shall be available to the insured if requested within five (5) months after termination and shall allow for the collection of past due premiums, where appropriate. The standard of proof of cognitive impairment or loss of functional capacity shall not be more stringent than the benefit eligibility criteria on cognitive impairment or the loss of functional capacity contained in the policy and certificate. 

Claim:  A short-term care policy should suffice because most need care in a facility less than seven to nine months.

Fact:  Claims data for 2014 from Genworth Financial, which has more LTC insurance policyholders than anyone in the industry, dispels the idea that policies covering up to nine months leaves a gaping hole in one’s plan for extended care. First, 50% of claims last more than one year, and of those lasting more than one year, the average length of claim lasts 3.9 years. Note also that 71% of claims started with home care; only 16% started in nursing homes. No doubt, long-term care insurance helps people stay at home where they want to be. Yes, the LTC Forum of Colorado, Inc., recommends short-term care insurance coverage to those not healthy enough to purchase LTC insurance or who cannot afford such a policy. But LTC insurance should be the choice for those who can qualify and afford $2,000 to $3,000 per year. In addition, only long-term care insurance can qualify policyowners for the Colorado Partnership Program which allows insureds to protect assets from Medicaid spend-down. For every dollar the Partnership policy pays for care, one dollar in assets is disregarded, allowing the middle class policyholder to leave assets to a spouse, partner, or children.

The story omits other attractive insurance-based planning solutions that are growing in popularity. For example, many life insurance companies now allow the death benefit provided by a life insurance policy to be used or “accelerated” for LTC services. Any remaining death benefit not used for care is paid to the beneficiaries. Premiums may be guaranteed, most offer cash surrender values if the insured cancels coverage, and some allow the monthly benefit received to be used for care from anyone such as family and friends.

Claim: The best solution is a reverse mortgage. No premiums, guaranteed income, and you don’t lose your home. If you are able to age in place at home, you have your house as your insurance policy and that’s the best route to go.

Fact: A home is not an insurance policy. While the LTC Forum endorses and recommends reverse mortgages, such a tool is not for everyone. First, the proceeds from a reverse mortgage may not provide enough income to cover the cost of extended care. Second, the common goal of keeping the house in the family may be compromised. Third, fees and other closing costs can be high.  Lastly, if the home is no longer the primary residence for 12 months, such as needing care in a nursing home or assisted living facility, the loan comes due. Even with these concerns, a very good idea would be to use some of the proceeds to purchase long-term care insurance.

The Forum applauds programs like “Perfect Homecoming” through Lutheran Medical Center and the Senior Resource Center. Certainly, these caring people and institutions play a significant role in discharge, care coordination, meals, and other services. However, the Forum is concerned that Colorado consumers might be led to believe that such programs negate the need for long-term care insurance, or even short-term care insurance. The story simply left out the fact that the patient returning home still needs to pay for home health care services, which is the role of insurance. And if the patient cannot transition back to home and needs care in a facility, the patient and the family will either be thankful for having quality long-term care insurance in place or will desperately wish they had the coverage!

Simply put, needing long-term care is the greatest uninsured risk left in life – more than 50% of people who reach 65 are expected to need care someday. Without any coverage, the caregiver, usually a spouse or child, will often go through severe emotional and physical consequences. For most, the retirement plan and other savings will be depleted to pay for care instead of providing lifestyle and keeping continuing commitments to loved ones. The members of the LTC Forum of Colorado strongly believe that some coverage is better than no coverage!

We would very much welcome the opportunity to visit with 9News about the issues above and additional insurance-based solutions.

Thank you,

The Members of the LTC Forum of Colorado, Inc.

Aaron R Eisenach, CLTC, President
Tammey Sullivan, CLTC, Vice President
Christine Crowley, CLTC, Treasurer
Janet Van Dorn, CLU, CLTC, Secretary
James Eby
Joyce Fowler, CLTC
Paul Hallmark, CLTC
Ralph Leisle, CLU, ChFC, CASL
Tom Rasmussen, CLTC
Don Rhoades
Ray Smith, CLU, CLTC, MBA

For contact information, please visit www.LTCForumColorado.org/members

 

Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of AaronEisenach.com and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.

Colorado Court of Appeals: Trial Court Committed Plain Error by Not Giving Unanimity Instruction in Forgery Case

The Colorado Court of Appeals issued its opinion in People v. Wester-Gravelle on Thursday, June 28, 2018.

Forgery—Jury Instructions—Unanimity Instruction—C.R.C.P. 12(b).

Defendant worked as a certified nursing assistant for Interim Healthcare (Interim), which provides in-home care to patients. In 2015, Interim assigned defendant to care for Moseley five days a week for two hours each day. Even though defendant had failed to show for her shift for three weeks, she had submitted weekly shift charts to receive payment for the preceding three weeks. The shift charts showed Moseley’s purported signatures acknowledging that defendant had arrived for her shifts. A jury convicted defendant of forgery, and the court sentenced her to two years’ probation.

On appeal, defendant contended that the trial court erred when it failed, on its own motion, to require the prosecution to elect a single forged shift chart as the basis for the conviction or to give a modified unanimity instruction. The People argued that defendant waived this issue by failing to object to the information under Crim. P. 12(b)(2) and (3), which requires a defendant to raise defenses or objections to an information and complaint within 21 days following arraignment. Colorado law is clear that Rule 12(b) does not require a defendant to object when the error stems from circumstances that are not apparent from the charging document. Here, on its face the charge does not evidence a defect, so Crim. P. 12(b)(2) does not apply. The unanimity issue arose only after the prosecution decided to introduce three different written instruments for the period charged. Therefore, defendant did not waive her claim.

The court of appeals determined that the prosecution’s evidence presented a reasonable likelihood that the jurors may have disagreed on which shift chart constituted the forgery charged. Thus, the court should either have (1) required the prosecution to elect an act on which it relied for a conviction, or (2) instructed the jury that to convict, it had to unanimously agree on the act committed or unanimously agree that defendant committed all of the acts. This error was substantial and obvious.

The conviction was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Lieutenant Governor Lynne Signs Final Bills of 2018 Legislative Session

On Wednesday, June 6, 2018, Lieutenant Governor Donna Lynne signed the final bills of the 2018 legislative session into law in Governor Hickenlooper’s absence. Lt. Gov. Lynne signed 35 bills into law. During the 2018 legislative session, 421 bills were signed into law, 9 were vetoed, and 2 were sent to the Secretary of State without a signature. The bills signed Wednesday are summarized here.

  • SB 18-015 – “Concerning the ‘Protecting Homeowners and Deployed Military Personnel Act,'” by Sens. Bob Gardner & Owen Hill and Reps. Dave Williams & Larry Liston. The bill directs a peace officer to remove a person from a residential premises and to order the person to remain off the premises if the owner or owner’s authorized agent (declarant) swears to a declaration making specified statements concerning ownership of the premises and the lack of authority for the person or persons who are on the premises to be there.
  • SB 18-038 – “Concerning the Allowable Uses of Reclaimed Domestic Wastewater, and, in Connection Therewith, Allowing Reclaimed Domestic Wastewater to be Used for Industrial Hemp Cultivation and Making an Appropriation,” by Sens. Kerry Donovan & Don Coram and Reps. Daneya Esgar & Yeulin Willett. The bill codifies rules promulgated by the water quality control commission of the Colorado department of public health and environment concerning allowable uses of reclaimed domestic wastewater, which is wastewater that has been treated for subsequent reuses other than drinking water.
  • SB 18-068 – “Concerning Criminalizing False Reports,” by Sens. John Cooke & Kevin Van Winkle and Rep. Jeff Bridges. Under current law, there is a crime of false reporting to authorities. The bill creates a crime of false reporting of an emergency by criminalizing an act of false reporting to authorities that includes a false report of an imminent threat to the safety of a person or persons by use of a deadly weapon.
  • SB 18-225 – “Concerning the Definition of an Early College for Purposes of the ‘Concurrent Enrollment Programs Act,'” by Sen. Kent Lambert and Rep. Millie Hamner. Under the existing statute, an early college is not subject to the requirements of the ‘Concurrent Enrollment Programs Act’. The bill amends the definition of ‘early college’ to specify that an early college must provide only a curriculum that is designed to be completed within 4 years and includes concurrent enrollment in high school and postsecondary courses such that, when a student completes the curriculum, the student has attained a high school diploma and a postsecondary credential or at least 60 credit hours toward completion of a postsecondary credential.
  • SB 18-245 – “Concerning the Disposal of Naturally Occurring Radioactive Materials,” by Sen. John Cooke and Rep. Jeni James Arndt. Current law allows the state board of health to adopt rules concerning the disposal of naturally occurring radioactive materials (NORM) only after the federal environmental protection agency has adopted rules concerning the disposal of NORM. The EPA has not adopted the rules. The bill repeals this prohibition and requires the state board to adopt rules, which must also regulate technologically enhanced NORM (TENORM), by December 31, 2020.
  • SB 18-250 – “Concerning the Provision of Jail-based Behavioral Health Services, and, in Connection Therewith, Making an Appropriation,” by Sens. Bob Gardner & Kent Lambert and Reps. Pete Lee & Dave Young. The bill continues to allow the correctional treatment cash fund to be used to provide treatment for persons with mental and behavioral health disorders who are being served through the jail-based behavioral health services program.
  • SB 18-251 – “Concerning Establishing a Statewide Behavioral Health Court Liaison Program, and, in Connection Therewith, Making an Appropriation,” by Sens. Bob Gardner & Kent Lambert and Reps. Dave Young & Pete Lee. The bill establishes in the office of the state court administrator a statewide behavioral health court liaison program. The purpose of the program is to identify and dedicate local behavioral health professionals as court liaisons in each state judicial district to facilitate communication and collaboration among judicial, health care, and behavioral health systems.
  • SB 18-255 – “Concerning the Use of Electronic Formats in the Issuance of Certificates of Title for Vehicles,” by Sen. Jack Tate and Reps. Jeni James Arndt & Edie Hooten. Current law provides that a record may not be denied effect merely because it is electronic. The bill clarifies that this applies to documents needed to obtain a certificate of title and electronic signatures.
  • SB 18-259 – “Concerning the Taxation of Retail Marijuana by Local Governments, and, in Connection Therewith, Making an Appropriation,” by Sen. Jim Smallwood and Rep. Dan Pabon. The bill imposes general taxation requirements on local government.
  • SB 18-267 – “Concerning the Creation of the Justice Center Maintenance Fund,” by Sens. John Kefalas & Randy Baumgardner and Reps. Jon Becker & Chris Hansen. The bill creates the justice center maintenance fund that consists of money appropriated by the general assembly to the maintenance fund from the justice center cash fund to be used for controlled maintenance needs of the Ralph L. Carr Colorado judicial center.
  • SB 18-269 – “Concerning Providing Funding for Local Education Providers to Implement School Security Improvements to Prevent Incidences of School Violence, and, in Connection Therewith, Creating the School Security Disbursement Program,” by Sens. Tim Neville & Dominick Moreno and Reps. Patrick Neville & Jeff Bridges. The bill creates the school security disbursement program in the department of public safety. A school district, charter school, institute charter school, or board of cooperative services may apply for a disbursement by submitting an application to the department. A disbursement recipient may use the money for one or more of the purposes specified in the bill, which include building improvements to enhance security and training for school personnel.
  • SB 18-280 – “Concerning a Transfer from the General Fund to the Tobacco Litigation Settlement Cash Fund to be Allocated to the Programs, Services, and Funds that Currently Receive Tobacco Litigation Settlement Money,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to transfer $19,965,068 from the general fund to the tobacco litigation settlement cash fund on July 1, 2018. This money is allocated for the 2018-19 fiscal year to the programs, services, and funds that receive tobacco litigation settlement money to supplement the allocation of settlement money that those programs, services, and funds will otherwise receive.
  • HB 18-1042 – “Concerning the Creation of a Program to Authorize Private Providers to Register Commercial Vehicles as Class A Personal Property, and, in Connection Therewith, Making and Reducing an Appropriation,” by Reps. Jon Becker & Joann Ginal and Sens. Ray Scott & Rachel Zenzinger. The bill creates the expedited registration program. The program authorizes the department of revenue to promulgate rules authorizing private providers to register interstate commercial vehicles. The provider may collect and retain a convenience fee.
  • HB 18-1077 – “Concerning the Penalty for a Person who Commits Burglary to Acquire Firearms, and, in Connection Therewith, Making an Appropriation,” by Reps. Larry Liston & Donald Valdez and Sens. Leroy Garcia & Ray Scott. In current law, second degree burglary is a class 4 felony, but it is a class 3 felony under 2 specified circumstances. The bill designates a third type of second degree burglary as a class 3 felony: that is, a burglary, the objective of which is the theft of one or more firearms or ammunition.
  • HB 18-1146 – “Concerning the Continuation Under the Sunset Law of the Measurement Standards Law,” by Rep. Jovan Melton and Sen. Don Coram. The bill implements the recommendations of the department of regulatory agencies in its sunset review and report on the measurement standards law by extending the law for 15 years.
  • HB 18-1156 – “Concerning Limitations on Penalties for Truancy,” by Rep. Pete Lee and Sen. Chris Holbert. The bill clarifies in the Colorado Children’s Code and in the ‘School Attendance Law of 1963’ that a ‘delinquent act’ does not include truancy or habitual truancy. A child who is habitually truant and who refuses to follow a plan to rehabilitate his or her truancy may be subject to various sanctions by the court in a truancy proceeding.
  • HB 18-1200 – “Concerning Cybercrime, and, in Connection Therewith, Criminalizing Using a Computer to Engage in Prostitution of a Minor, Criminalizing Skimming Payment Cards, Making Changes to the Penalty Structure for Cybercrime, and Making an Appropriation,” by Reps. Paul Lundeen & Alec Garnett and Sens. Rhonda Fields & Don Coram. The bill changes the name of the crime computer crime to cybercrime. The bill makes soliciting, arranging, or offering to arrange a situation in which a minor may engage in prostitution, by means of using a computer, computer network, computer system, or any part thereof, a cybercrime.
  • HB 18-1218 – “Concerning the Definition of a Charitable Organization for Purposes of State Sales and Use Tax, and, in Connection Therewith, Removing the Limitation that a Veterans’ Organization Only Gets the Charitable Organization Exemption for Purposes of Sponsoring a Special Event, Meeting, or Other Function in the State, So Long as Such Event, Meeting, or Function is Not Part of the Organization’s Regular Activities in the State,” by Reps. Terri Carver & Jovan Melton and Sens. Nancy Todd & Larry Crowder. The bill makes state law consistent with federal law and will treat veterans’ organizations registered under section 501 (c)(19) of the federal internal revenue code the same way as veterans’ organizations registered under section 501 (c)(3) of the federal internal revenue code.
  • HB 18-1234 – “Concerning Clarification of the Laws Governing Simulated Gambling Activity,” by Reps. KC Becker & Paul Lundeen and Sen. Kent Lambert. The bill amends the definitions of key terms such as ‘gambling’, ‘prize’, and ‘simulated gambling device’ as used in the criminal statutes governing simulated gambling devices and specifies that unlawful offering of a simulated gambling device occurs if a person receives payment indirectly or in a nonmonetary form for use of a simulated gambling device.
  • HB 18-1302 – “Concerning the Allowance of the Department of Public Health and Environment to Waive Certification Requirements for Toxicology Laboratories that have been Accredited by an Entity Using Recognized Forensic Standards,” by Reps. Joann Ginal & Lois Landgraf and Sen. Vicki Marble. Current law allows the department of public health and environment to waive certain certification requirements for toxicology laboratories that are accredited by the American board of forensic toxicology or the international standards organization. The bill changes the waiver requirement to allow the department to waive certification requirements if the laboratory is accredited by an entity using nationally or internationally recognized forensic standards.
  • HB 18-1303 – “Concerning Exemption of Nonprofit Youth Sports Organization Coaches from the ‘Colorado Employment Security Act,'” by Reps. Cole Wist & Alec Garnett and Sen. Jack Tate. The bill exempts from the definition of ’employment’ under the ‘Colorado Employment Security Act’ nonprofit youth sports organization coaches if there is a written agreement between the coach and the organization that meets certain requirements, including a statement that the coach is an independent contractor.
  • HB 18-1313 – “Concerning the Allowance of a Pharmacist to Serve as a Practitioner under Certain Circumstances,” by Reps. Joann Ginal & Jon Becker and Sens. Irene Aguilar & Kevin Priola. The bill clarifies that a licensed and qualified pharmacist may serve as a practitioner and prescribe over-the-counter medication under the ‘Colorado Medical Assistance Act’ and a statewide drug therapy protocol pursuant to a collaborative pharmacy practice agreement.
  • HB 18-1314 – “Concerning Prohibiting the Use of Unmanned Aircraft Systems to Obstruct Public Safety Operations,” by Reps. Joann Ginal & Polly Lawrence and Sen. John Cooke. The bill states that, as used in the existing criminal offense of obstructing a peace officer, firefighter, emergency medical service provider, rescue specialist, or volunteer, the term ‘obstacle’ includes an unmanned aircraft system.
  • HB 18-1335 – “Concerning the Colorado Child Care Assistance Program, and, in Connection Therewith, Establishing Eligibility Requirements for All Counties and Creating a New Formula to Determine the Amount of Block Grants to Counties,” by Rep. Dave Young and Sen. Kevin Lundberg. For providers under the Colorado child care assistance program, the bill requires the state department of human services, in consultation with the counties, annually to contract for a market rate study of provider rates for each county.
  • HB 18-1342 – “Concerning a Requirement that a Common Interest Community Created in Colorado Before July 1, 1992, Comply with a Provision of the ‘Colorado Common Interest Ownership Act’ that Allows a Majority of the Unit Owners in a Common Interest Community to Veto a Budget Proposed by the Executive Board of the Common Interest Community,” by Rep. Jovan Melton and Sen. Nancy Todd. The bill requires a common interest community that predates the Act to allow its unit owners to veto, by majority vote, a budget proposed by the common interest community’s executive board; except that the bill does not apply to a common interest community that predates the Act if the common interest community’s declaration sets a maximum assessment amount or provides a limit on the amount that the common interest community’s annual budget may be increased.
  • HB 18-1350 – “Concerning the Sales and Use Tax Treatment of Equipment Used to Manufacture New Metal Stock from Scrap or End-of-Life-Cycle Metals, and, in Connection Therewith, Making an Appropriation,” by Rep. Tracy Kraft-Tharp and Sen. Kevin Priola. Purchases of machinery or machine tools to be used in Colorado directly and predominantly in manufacturing tangible personal property are currently exempt from state sales and use tax. Manufacturing is currently defined to include the processing of recovered materials. The bill expands the definition of recovered materials to include materials that have been derived from scrap metal or end-of-life-cycle metals for remanufacturing, reuse, or recycling into new metal stock that meets applicable standards for metal commodities sales.
  • HB 18-1363 – “Concerning Legislative Recommendations of the Child Support Commission, and, in Connection Therewith, Making an Appropriation,” by Reps. Jonathan Singer & Lois Landgraf and Sen. Larry Crowder. The bill implements several recommendations from the child support commission.
  • HB 18-1373 – “Concerning the Use of the State Telecommunications Network by Private Entities Through Public-Private Partnerships, and, in Connection Therewith, Relocating Laws Related to the State Telecommunications Network from the Department of Public Safety’s Statutes to the Statutes Regarding Telecommunications Coordination within State Government,” by Reps. Jon Becker & Chris Hansen and Sens. Randy Baumgardner & John Kefalas. The bill authorizes private entities to use the state telecommunications network through public-private partnerships considered, evaluated, and accepted by the chief information officer and relocates laws related to the state telecommunications network from the department of public safety’s statutes to the statutes regarding telecommunications coordination within state government.
  • HB 18-1402 – “Concerning Authorization for the State Treasurer to Invest State Money in Investment Grade Securities Issued by Sovereign, National, and Supranational Entities,” by Reps. Polly Lawrence & Dave Young and Sens. Bob Gardner & Angela Williams. The bill authorizes the state treasurer to invest state money in securities issued by a sovereign, national, or supranational entity that are rated at least investment grade by a nationally recognized rating organization.
  • HB 18-1405 – “Concerning an Exception from the Mandatory Reporting Requirements for Persons Providing Legal Assistance to Area Agencies on Aging,” by Rep. Pete Lee and Sen. Bob Gardner. Under current law, staff, and staff of contracted providers, of area agencies on aging are mandatory reporters of the mistreatment of an at-risk elder or an at-risk adult with an intellectual and developmental disability. The bill creates a mandatory reporter exception for attorneys at law providing legal assistance to individuals pursuant to a contract with an area agency on aging, the staff of such attorneys at law.
  • HB 18-1410 – “Concerning Measures to Address Prison Population Increases,” by Reps. Pete Lee & Leslie Herod and Sens. Kevin Lundberg & Daniel Kagan. The bill requires the department of corrections to track the prison bed vacancy rate in both correctional facilities and state-funded private contract prison beds on a monthly basis. If the vacancy rate falls below 2% for 30 consecutive days, the department shall notify the governor, the joint budget committee, the parole board, each elected district attorney, the chief judge of each judicial district, the state public defender, and the office of community corrections in the department of public safety.
  • HB 18-1421 – “Concerning the Procurement Process for Major Information Technology Projects Undertaken by State Agencies, and, in Connection Therewith, Making an Appropriation,” by Rep. Bob Rankin and Sens. Kent Lambert & Jack Tate. The bill requires internal process changes in connection with the procurement process for major information technology (IT) projects as specified.
  • HB 18-1422 – “Concerning Requirements for Marijuana Testing Facilities,” by Rep. Matt Gray and Sen. Cheri Jahn. The bill requires medical and retail marijuana testing facilities to be accredited pursuant to the International Organization for Standardization/International Electrotechnical Commission 17025:2005 standard by a body that is itself recognized by the International Laboratory Accreditation Cooperation by January 1, 2019.
  • HB 18-1429 – “Concerning the Exemption of the Workers’ Compensation Cash Fund from the Maximum Reserve,” by Rep. Millie Hamner and Sen. Kent Lambert. Prior to July 1, 2017, the workers’ compensation cash fund was exempt from the maximum reserve for a cash fund, which limits the year-end uncommitted reserves in a cash fund to 16.5% of the amount expended from the cash fund during the fiscal year. The bill once again exempts the workers’ compensation cash fund from the maximum reserve.
  • HB 18-1437 – “Concerning Eliminating the Requirement that a Person who Participates in College-level Academic Programs through the Correctional Education Program in the Department of Corrections must Bear Entirely the Costs Associated with such Programs,” by Rep. Leslie Herod and Sen. Tim Neville. Under current law, the correctional education program in the department of corrections is required to provide every person in a correctional facility who demonstrates college-level aptitudes with the opportunity to participate in college-level academic programs that may be offered within the correctional facility. The bill removes this stipulation concerning costs and states instead that such costs may be borne through private, local, or federally funded gifts, grants, donations, or scholarships, or by such persons themselves, or through any combination of such funding.

For a list of the governor’s 2018 legislative decisions, click here.