July 20, 2019

HB 17-1121: Requiring Criminal History Checks for Professional Health Care Workers with Prescriptive Authority

On January 20, 2017, Rep. Janet Buckner introduced HB 17-1121, “Concerning Certain Health Care Professions Regulated by the Department of Regulatory Agencies, and, in Connection Therewith, Requiring Criminal History Record Checks for Individuals with Prescriptive Authority and Certified Nurse Aides, Repealing the Nurse Licensure Compact, and Enacting the Enhanced Nurse Licensure Compact.”

Patient Safety Act

The bill requires applicants for initial licensure or certification, as well as current licensees and certificate holders, to submit to a fingerprint-based criminal history record check for:

  • Podiatrists (sections 1 and 2);
  • Dentists and dental hygienists (sections 3 and 4);
  • Medical doctors, physician assistants, and anesthesiologists (sections 5 and 6);
  • Nurses (sections 7 and 8);
  • Certified nurse aides (sections 10 and 11);
  • Optometrists (sections 13 through 15); and
  • Veterinarians (sections 16 through 18).

Section 9 of the bill eliminates the nurse alternative to discipline program.

Section 12 of the bill requires an employer of a certified nurse aide (CNA) to report whenever a CNA is terminated from employment or resigns in lieu of termination, within 30 days after the termination or resignation. The state board of nursing is authorized to fine an employer that fails to report the termination or resignation.

Section 19 amends the ‘Medical Transparency Act of 2010’ to include a person applying for nurse licensure under the ‘Enhanced Nurse Licensure Compact’ within the definition of ‘applicant’.

Section 20 of the bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.

The bill was introduced in the House and assigned to the Health, Insurance, & Environment Committee. It is scheduled for hearing in committee at 1:30 p.m. on February 16, 2017.

Colorado Court of Appeals: “Newsletter Exclusion” Did Not Apply to Unlicensed Securities Advisor

The Colorado Court of Appeals issued its opinion in Mandel v. Rome on Thursday, December 30, 2016.

Colorado Securities Act—Licensure—Summary Judgment—Investment Adviser—First Amendment—Restitution—Permanent Injunction.

Defendants Mandel and Wall Street Radio, Inc. hosted a radio show devoted to security investments, Wall Street Radio (WSR). They also offered through a website a variety of investment related services under two plans. The Master Membership Plan, with a $500 annual fee, provided newsletters, seminars, and the opportunity to email or call defendant Mandel twice a week with questions about specific stocks (crystal ball readings). The Lead Trader Membership Plan, under which subscribers paid between $1000 and $2000 annually, provided the same services as Master Membership and also offered the opportunity to mimic Mandel’s own security trades through an investment vehicle known as auto-trading. In auto-trading, trades are automatically made that mimic the lead trader’s trades without the need for approval. Followers are often not aware of the trades until after they have occurred.

The auto-trading was done through a company called Ditto Trade, in which Mandel owned an interest. Ditto Trade requires its lead traders to attest that they are either registered investment advisers or exempt from registration. Neither Mandel nor WSR were licensed in Colorado as investment advisers or investment adviser representatives. In 2008, Mandel had applied for a license, but his application was denied in an administrative action. A stipulated consent order denying the application precluded him from reapplying for 10 years and barred him from acting as a solicitor or otherwise associating with any Colorado licensed investment adviser or “federally covered” adviser. Mandel attested to operating within an exemption.

This action was commenced by the Securities Commissioner of Colorado, Rome, against Mandel and WSR, alleging they had acted as unlicensed investment advisers or investment adviser representatives under the Colorado Securities Act (CSA). Defendants claimed that pursuant to the CRS § 11-51-201(9.5)(b)(III) “newsletter exclusion” they were exempt from licensure. The trial court granted summary judgment against defendants. It entered a permanent injunction and directed them to pay $80,000 in restitution ($1000 for each auto-trading subscriber).

On appeal, defendants argued that the trial court erroneously entered summary judgment because a genuine issue of material fact existed as to whether they acted as investment advisers or investment adviser representatives. The Colorado Court of Appeals found that the Commissioner presented undisputed facts sufficient to resolve the case. It therefore turned to whether judgment was appropriate as a matter of law.

There was no dispute to the evidence presented by the Commissioner that defendants met the basic definition of investment adviser or investment adviser representative. To avoid the licensing requirement, defendants had to meet the “newsletter exclusion” from the definition of investment adviser, which required their services to qualify as bona fide publications or newsletters with a regular circulation. The court found that the lead trader services were not “publications” generally disseminated to subscribers. It rejected defendants’ argument that because they disseminated a newsletter, all of their other activities fell within the exclusion. Also, the lead trader service was not bona fide because it did not consist of disinterested commentary or analysis; instead, each follower’s investment decision was directly linked to Mandel’s investment account. Thus Mandel could personally benefit from the trades. Finally, the service was not “regular.” It did not follow a routine schedule but occurred when Mandel decided to make trades. Similarly, the crystal ball readings were not regular and addressed specific investment situations. Because defendants provided both services for compensation without a license they violated the CSA.

Defendants further argued that the summary judgment was inappropriate because the Commissioner failed to controvert their affirmative defense that the First Amendment of the federal constitution and Colorado Constitution art. II, § 10 barred the enforcement action. Because the services provided were sufficiently personal to treat defendants as investment advisors or investment representatives, requiring them to obtain a license as a condition of providing these services is constitutional.

Defendants also argued that the trial court erred in imposing restitution, contending that only damages could be awarded under the CSA. The court did not need to address this argument because it held that the record and the law support the award under a common law restitution theory.

Lastly, defendants challenged both parts of the permanent injunction. Defendants argued that the first part of the injunction improperly enjoins them from engaging in lawful activity. Defendants contended that the court abused its discretion and exceeded its statutory authority by enjoining them from “associating in any capacity” with securities professionals engaged in business in Colorado. The court found that the trial court had statutory authority to enjoin defendants from associating with securities professionals to ensure compliance with the CSA. However, the court found that the first part of the injunction was overly broad and subject to different interpretations.

Defendants argued that the second part of the injunction is simply an edict to obey the law and is thus overly broad and vague. The court agreed.

The summary judgment and restitution orders were affirmed. The injunction was vacated in part and reversed in part, and the case was remanded to the trial court for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Governor Signs TILA/RESPA Bill, DOLA Election Results Bill, and More

On Wednesday, March 16, 2016, Governor Hickenlooper signed five bills into law. To date, he has signed 23 bills this legislative session. Links to the bills signed Wednesday are available here.

  • HB 16-1012Concerning a Requirement that a Municipal Clerk File a Copy of Each Statement of Election Results with the Division of Local Government in the Department of Local Affairs Rather than the Secretary of State, by Rep. Su Ryden and Sen. Ray Scott. The bill requires certified statements of local election results to be filed with the Division of Local Government in the Department of Local Affairs, rather than the Secretary of State, and requires the results to be posted on the division website.
  • HB 16-1025 – Concerning Statutory Recognition that an Insurance Policy May be Subject to Renewal by an Admitted Insurer Within the Same Insurance Group as the Insurer that Issued the Insurance Policy, by Rep. Jeni James Arndt and Sen. Jack Tate. The bill clarifies that, when an insurance policy is carried by one of multiple insurance carriers within a group, the policy may be renewed by any member of the group.
  • HB 16-1076 – Concerning the Status of a Retired Architect, by Rep. Millie Hamner and Sen. Jack Tate. The bill allows licensed architects age 65 and older to apply to the Board of Licensure for Architects, Professional Engineers, and Professional Land Surveyors for classification as a retired architect, provided the retired architect pays a fee and ceases to practice. The bill permits reinstatement upon payment of a fee and possible reexamination for competency.
  • SB 16-008 – Concerning the Use of an Off-Highway Vehicle to Cross State Highways Within the Jurisdiction of a Municipality, by Sen. Larry Crowder and Rep. Owen Hill. Under current law, off-highway vehicles may cross state highways except within the jurisdiction of a municipality. The bill gives authority to municipalities to allow off-highway vehicles to cross state highways within their jurisdiction.
  • SB 16-014 – Concerning the Alignment of State Mortgage Originator Disclosure Laws with Recent Changes in Federal Law, by Sen. Chris Holbert and Rep. Angela Williams. The bill aligns state mortgage originator disclosure requirements with federal law by repealing certain statutory provisions and replacing them with references to TILA, RESPA, or other applicable federal laws. The bill also permits future rulemaking by the state Board of Mortgage Loan Originators related to compliance with other statutes and regulations.

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

SB 14-027: Requiring Criminal Background Checks for Law License Applicants and CFIs

On Wednesday, January 8, 2014, Sen. Lucia Guzman introduced SB 14-027 – Concerning Criminal History Background Checks for Professionals Who Have the Authority to Appear in Court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a fingerprint-based criminal history background check for a law license applicant and a child and family investigator. The bill updates the license to practice law statute. The bill cleared the Judiciary and the Finance Committees on Jan. 15 and 23 respectively; it now goes to the full Senate for consideration on 2nd Reading.

SB 13-259: Requiring Licensure of Private Investigators

On Tuesday, April 9, 2013, Sen. Linda Newell introduced SB 13-259 – Concerning the Regulation of Private Investigators by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the current “Private Investigators Voluntary Licensure Act” (act), a private investigator, at his or her option, may apply for a license from the division of professions and occupations (division) in the Department of Regulatory Agencies and, upon satisfaction of the criteria for licensure, the director of the division is to issue a license to the private investigator. Only a person who obtains a license from the division may refer to himself or herself as a licensed private investigator, but no private investigator is required to be licensed by the division.

As of March 1, 2014, the bill converts the voluntary licensure program to a mandatory licensure program under which all persons conducting private investigations in this state must obtain a license from the division. The bill modifies the experience criteria for licensure to eliminate the requirement that the prior experience be obtained within the prior five years.

Under the bill, a person who does not satisfy the experience requirements for licensure may register with the division as a private investigator apprentice and may engage in private investigation activities under the indirect supervision of a licensed private investigator.

The bill also requires the director to appoint an advisory committee, consisting of three licensed private investigators, one representative from law enforcement, and one public member, to make recommendations to the director concerning private investigators and the practice of private investigations.

In addition to the exemptions in current law, which are relocated to a new section in the act, the bill excludes the following persons from the requirements of the act:

  • A person serving process in accordance with rules of civil procedure;
  • A person providing paralegal services under contract with an attorney; and
  • A person recovering a fugitive.

Under the bill, licensees and registered apprentices are required to post a surety bond in an amount determined by the director by rule and are subject to discipline for failing to maintain the surety bond. Additionally the bill, a licensee is subject to discipline for failing to properly supervise a private investigator apprentice or, for licensees and registered apprentices, failing to meet generally accepted standards of private investigations practice.

The bill extends the sunset date for the “Private Investigators Licensure Act” and the functions of the director under the act from Sept. 1, 2016, to Sept. 1, 2021. The advisory committee is also subject to sunset review and repeal on Sept. 1, 2021.

The bill was introduced on April 9 and has been assigned to the Judiciary Committee; it is scheduled for committee review on April 19, “Upon Adjournment.”

HB 12-1332: Mandating Licensure of Anesthesiologist Assistants and Enacting Requirements for Practicing as Anesthesiologist Assistants

On March 29, 2012, Rep. David Balmer and Sen. Lucia Guzman introduced HB 12-1332 – Concerning Licensure of Anesthesiologist Assistants. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits an individual from practicing as an anesthesiologist assistant without a license issued by the Colorado medical board, effective July 1, 2013. In order to be licensed as an anesthesiologist assistant, an applicant must be at least 21 years of age and have:

  • Successfully completed an education program for anesthesiologist assistants that conforms to standards delineated by the commission on accreditation of allied health education programs and approved by the board;
  • Successfully completed the national certifying examination for anesthesiologist assistants that is administered by the national commission for certification of anesthesiologist assistants; and
  • Submitted an application to the board in the manner designated by the board and paid the appropriate fee established by the board.

The bill allows a physician who specializes in anesthesiology to delegate medical tasks to a licensed anesthesiologist assistant, including the authority to administer medications. The tasks are limited to the medical functions that constitute the delivery of or provision of anesthesia services as practiced by the supervising physician.

An anesthesiologist assistant is subject to the same standards for licensing, unprofessional conduct, and discipline that exist for physician assistants. The bill was amended by the Health and Environment Committee on April 3 and referred to the full House for consideration on 2nd Reading.

Since this summary, the bill passed the Second Reading with amendments and was laid over daily for third reading.

Summaries of other featured bills can be found here.