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CBA E-Legislative Report -- March 1, 2010

March 1, 2010
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Highlights:

CBA Legislative Policy Committee (LPC)

Bills of Interest
-House 
-Senate

From the Colorado Bar Association - Department of Legislative Relations
Michael Valdez

Keeping you apprised of what the General Assembly and your state Bar Association are up to under the Gold Dome.

Follow the Colorado Legislature on their website: http://www.leg.state.co.us/

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• CBA Legislative Policy Committee (LPC)

 
Highlights of LPC activity from the meeting on Friday, February 26:
 
HB 1274 - Out-of-home Juvenile Transition Public School
The LPC voted to accept the recommendation of the Juvenile Law Section and oppose HB 1274 - Out-of-home Juvenile Transition Public School in its current form. The Juvenile Law section’s primary concerns are focused on drafting issues, the bill targeting children in foster care with no delinquent history, and ignores local control of human services and school districts. Stated goal of the bill is to require the department of human services to provide written notification to a school district, charter school, or institute charter school 10 days prior to enrollment of a student who has been placed in out-of-home placement and is identified as potentially presenting a risk to himself or herself or the community. The Juvenile Law section will continue to work with the proponents of the bill in an effort to find a mutually acceptable compromise.
 
HB 1269 - Workplace Fairness Civil Remedies Act
The LPC voted to accept the recommendation of the Civil Rights committee and support HB 1269 - Workplace Fairness Civil Remedies Act. The bill provides compensatory and punitive remedies that do not currently exist in the Colorado Anti-Discrimination Act (CADA). The LPC cited Access to Justice as the major justification to support this legislation.
 
HB 1263 - Limit Income Tax Benefit For Comp Paid
The LPC followed the recommendation of the Taxation Law section and voted to oppose HB 1263 - Limit Income Tax Benefit For Comp Paid. This bill removes tax deductions for salaries above $250,000. This legislation was considered and rejected by Governor Ritter as a bill to generate additional revenue to balance the budget. The bill is on hold until the March 20 revenue forecasts are released.
 

• Bills of interest and the activity from the week of Feb. 22:

 

In the House

 
HB 1168 - Concerning a limitation on the ability of an insurer to obtain repayment of benefits from an injured party who recovers damages from the party responsible for the injury in situations when the injured party would not be fully compensated if the benefits are repaid to the insurer. By Rep. Levy and Sen. Steadman. The bill would limit the ability of an insurer to obtain a repayment of benefits if the repayment would cause the injured party to not be fully compensated. Additionally, if the injured party has been fully compensated and the repayment is allowed, the amount of the repayment is limited to the amount actually paid by the insurer. Finally, the bill requires the insurer to pay its proportionate share of attorney fees and costs incurred by the injured party in obtaining the settlement or judgment. The House Judiciary committee heard testimony on Feb. 22 and on Feb. 25 amended the bill and referred the bill to the full House for consideration on 2nd Reading.
 
HB 1169 - Concerning a perpetual conservation easement in gross for which a state income tax credit is claimed. By Rep. McKinley. The bill restricts the ability of the executive director of the department of revenue to contest an appraisal and credit claimed for an easement donated prior to January 1, 2008, unless the valuation has been disallowed by the internal revenue service on or before July 31, 2010, or the valuation is supported solely by an appraisal from an appraiser convicted of fraud or misrepresentation prior to January 1, 2011, in connection with preparing the appraisal. Assigned to the Finance committee.
 
HB 1179 - Concerning measures to expand the availability of primary care services throughout the state. By Rep. Acree and Sen. Boyd. The legislative intent of the bill encourages the expansion of primary health care services to shortage areas throughout the state through use of available space in public buildings and donations and investments by private businesses to assist physicians in locating and offering primary care services in rural areas. The bill allows medical malpractice insurers to discount the medical malpractice insurance rates of licensed physicians who provide primary care services in health professional shortage areas for at least 50% of their practice time. The bill expands the state health care professional loan repayment program by:
 
  • Eliminating the cap on the amount of an award under the program; and
  • Eliminating restrictions on the type of setting in which a health care professional may provide primary care services in order to be eligible for loan repayment under the program. 
The bill requires the department of health care policy and financing to develop a 5-year strategic plan for increasing reimbursement rates for primary care providers, and removing differentiation in rates based on service delivery location, under Medicaid.
 
On January 28 the Judiciary committee approved the bill and referred it to the Health and Human Services committee. On February 18, the Health and Human Services committee amended the bill and referred it to the Appropriations committee.
 
HB 1188 - Concerning clarification of the scope of the existing right of navigation of guides employed by river outfitters. By Rep. Curry and Sen. Hodge. The bill recognizes that the state's adoption of the common law of England established the right of navigation. 

The bill:

• Clarifies that a guide employed by a licensed river outfitter and the guide's passengers may float on waterways that have historically been used for commercial float trips without committing civil or criminal trespass if they gain access to the waterway from public land or from private land with consent and make only incidental contact with the beds and banks of the waterway while floating and portaging;

 
• Limits a landowner's liability to such persons to damages willfully or deliberately caused by the landowner unless the person is an invitee or licensee of the landowner;
 
• Specifies that such a person who damages private property is liable for the damage; and
 
• Specifies that nothing in the law regulating river outfitters affects water rights.
 
• Makes a conforming and clarifying amendment to the criminal trespass statute.
 
An amended version of the bill passed out of the House on February 16.
 
HB 1202 - Concerning health benefit coverage for chemotherapy treatment. By Rep. Primavera and Sen. Tochtrop. The bill requires a health benefit plan that covers cancer chemotherapy treatment to provide coverage for prescribed, orally administered anticancer medication at a cost to the patient at the same copayment percentage or relative coinsurance amount as is applied to the cost of other cancer medications. Amended bill passed out of the House on February 8 and has been assigned to the Health and Human Services committee in the Senate.
 
HB 1203 - Concerning the issuing of group life insurance, and, in connection therewith, deleting the requirement regarding the minimum number of persons that must be covered by the policy. By Rep. A. Kerr and Sen. Steadman. Current law establishes the minimum number of persons that must be covered by a group life insurance policy. The current minimum number of persons required to be covered is three. This bill deletes the minimum number requirement. The unamended bill passed the House on February 9 and has been assigned to the Business, Labor, and Technology Committee in the Senate.
 
HB 1205 - Concerning land use planning by local governments to address the impacts of land use development upon military installations in close proximity to such governments. By Rep. Ryden and Sen. Spence. The bill modifies statutory provisions relating to the land use planning by county and municipal governments to address the impacts of military installations. The bill adds military installations to the list of key facilities that are considered areas of state interest for purposes of statutory provisions governing areas and activities of state interest (HB 1041 powers). The bill defines "Military installation" as a base, camp, post, station, airfield, yard, center, or any other land area under the jurisdiction of the United States department of defense, including any leased facility that is larger than 500 acres.
 
The bill modifies existing statutory provisions requiring local governments to notify military installations of certain zoning changes occurring near such installations. The bill adds "military installation" to the list of public places or facilities that may be included in a county or municipal master plan. On February 25, the House State, Veterans, & Military Affairs committee took testimony and delayed action on the bill to a future date.
 

HB 1210 - Concerning the redistricting process. By Rep. Weissmann and Sen. Morse. Executive Committee of the Legislative Council. The bill updates the permanent statutes relating to redistricting by requiring the Colorado reapportionment commission appointed in 2011 to designate in its plan which senatorial districts will stand for election in 2012 and which in 2014.

If a senator elected in 2010 vacates his or her seat prior to the start of the 2013 regular legislative session, the vacancy shall be filled from the district from which the senator was elected; however, any election in 2012 shall be from the newly drawn district. If such senator vacates his or her seat on or after the start of the 2013 regular legislative session, the vacancy shall be filled from the newly drawn district. The bill creates the redistricting account in the legislative department cash fund, and specifies the allowable uses of moneys in the account. 

The bill contains a legislative declaration that, because 2012 is a presidential election year and precinct caucuses may be held on February 7, 2012, the time for the commission to complete its final plan is shortened. The declaration urges the commission and the Colorado Supreme Court to approve a final redistricting plan by December 14, 2011.
 
On February 25, the State, Veterans, & Military Affairs committee referred the amended bill to the Appropriations committee.
 
HB 1211 - Concerning a reduction in the amount of the penalty for late vehicle registration of a vehicle without motive power that weighs two thousand pounds or less. By Rep. Tyler and Sen. Williams. Effective July 1, 2010, the bill reduces the penalty for late registration of a vehicle without motive power that weighs 2,000 pounds or less from $25 per month up to $100 to $10. The unamended bill passed out of the House on February 23 and has been assigned to the State, Veteran’s and Military Affairs committee.
 
HB 1212 - Concerning a requirement that the executive director of the department of revenue promulgate rules that establish circumstances in which a vehicle owner shall be exempted from paying the late fee for late registration of a vehicle. By Rep. Rice and Sen. Schwartz. The bill requires the executive director of the department of revenue to promulgate rules that establish circumstances, in addition to circumstances already established in statute, in which a vehicle owner shall be exempted from paying the late fee for late registration of a motor vehicle. The bill requires the rules to apply uniformly throughout the state and to include, but not be limited to, exemptions for:
 
• Acts of God and weather-related delays; 
• Office closures and furloughs; 
• Medical hardships, which shall not include financial inability to pay; 
• Out-of-state lienholders; and 
• Information technology failures.
 
The bill requires the executive director to consult with the county clerk and recorders in promulgating the rules. The amended bill passed out of the House on February 23 and has been assigned to the State, Veteran’s and Military Affairs committee.
 

In the Senate

 
SB 160 - Concerning the development of an alternative medical assistance program for the elderly. By Sen. Lundberg. The bill creates a voluntary alternative medical assistance program for the Medicaid-eligible elderly. An eligible participant agrees to receive an amount equal to 70% of the medical assistance benefits that he or she would have received if the participant were enrolled in the state's traditional Medicaid program in exchange for 2 features currently not allowed under the traditional Medicaid program:
 
• The participant can choose any provider in the state; and
 
• The state waives the right to pursue all estate recovery methods from the participant's family after the participant dies.
 
The participant's physician assesses the level of care the participant needs. The department of health care policy and financing then determines the expected costs to provide that level of care if the participant were enrolled in and were receiving services under the traditional Medicaid program and allocates 70% of that amount annually to reimburse providers for the participant's care. The department issues a debit card to the participant that would be funded monthly with one-twelfth of the annual amount so allocated to the participant, which the participant uses to pay for medical services while enrolled in the alternative program. The eligible participant purchases long-term care services, assisted living services, home- and community-based services, home health services, prescribed drugs, or any health or dental care service at rates set by the provider and the participant agrees to provide all additional resources needed for his or her care beyond the 70% Medicaid benefit amount provided through the program. The participant is responsible for researching and selecting the services. Each year, the department conducts a redetermination of the participant's eligibility for services and the participant's physician reassesses the level of care that the participant needs. The department is required to seek a federal waiver for the program. On February 8, the Health and Human Services committee referred the unamended bill to the Appropriations committee.
 

SB 163 - Concerning workers' compensation procedures. By Sen. Tochtrop and Rep. A. Kerr. The bill amends various procedural laws related to workers' compensation. The bill applies the provisions of Senate Bill 09-168, which bill is declared to be procedural in nature, to all workers' compensation claims regardless of the date the claims were filed. The bill requires the director of the division of workers' compensation in the department of labor and employment to promulgate rules biennially that establish a single life expectancy table based on mortality tables issued by the federal government and private industry. The bill also requires lump sum settlements to be paid to a claimant within 15 days after the respondent receives the executed settlement order.

The bill requires documents to be transmitted or served using identical means to all required recipients. The bill passed the House on February 22 and has been assigned to the Business Affairs and Labor committee. 

SB 165 - Concerning implementation of the incorporation of oil and gas wells into the prior appropriation system. By Sen. Hodge and Rep. Hullinghorst. The bill specifies that, except for coal bed methane wells, no well permit is required if the nontributary ground water being removed will not be beneficially used or beneficially used only for uses allowed under the "Oil and Gas Conservation Act." The bill extends the well permitting and substitute water supply plan compliance deadlines for oil and gas wells, including coal bed methane wells, from March 31, 2010, to August 1, 2010. The amended bill passed the Senate on February 22 and has been assigned to the Agriculture, Livestock, & Natural Resources committee.
 
SB 167 - Concerning increased efficiency in the administration of the "Colorado Medical Assistance Act," and, in connection therewith, creating the "Colorado Medicaid False Claims Act." By Sen. Boyd and Rep. Riesberg. The bill requires the executive director of the department of health care policy and financing to appoint an internal auditor for purposes of conducting internal audits of the state department, coordinating external audits of the state department, and conducting and supervising performance audits to ensure effective and efficient operation and administration of state department programs.
 
The bill requires the executive director of the state department to appoint a chief medical officer, who will receive a salary consistent with moneys available through general fund appropriations or otherwise.
 
The bill requires the state department to ensure that persons who receive public benefits from this state are not also receiving them from other states.
 
The bill authorizes the state department to purchase health insurance for medical assistance recipients who are eligible to enroll in private health insurance plans if the purchase is cost effective for the state. The bill limits the number of such purchases to 2,000 clients. The bill removes the authority of the state department to waive the recovery or adjustment of an overpayment for medical assistance if the recovery or adjustment would be inequitable.
 
The bill requires the state department to implement and maintain a system for reducing medical services coding errors through the use of automatic, prepayment review of medical assistance claims. The state department shall implement a system using nationally recognized correct coding methods and shall report to the legislature concerning the implementation of the system and any savings in state expenditures realized through the use of the system.
 
As a condition of doing business in the state, the bill authorizes the state department, or an independent contractor retained by the state department, to bill a third party on behalf of a provider of pharmaceutical services if the third party is determined to be a first payer for such services.
 
The bill authorizes a civil action by the state or a private person against a person who submits a false claim to the state in connection with Medicaid and specifies penalties for submitting false claims. The bill establishes procedures if an action is commenced by a relator and specifies percentages of recoveries that may be awarded as attorney fees.
 
The bill establishes a private right of action against an individual who retaliates against a relator because the relator takes lawful action in furtherance of a false claim action. It specifies requirements for a claim of and damages for retaliation against a relator. The bill establishes a statute of limitations for false claims. The bill establishes procedures for the attorney general to serve upon a person a civil investigative demand requiring the person to answer written or oral questions and to produce documents in the person's possession or control. Assigned to the Health and Human Services committee.
 
SB 168 - Concerning a reduction in state expenditures, and, in connection therewith, enacting the "Taxpayer Protection Act Of 2010." By Sen. Penry and Rep. Lambert. The bill requires the governor to reduce state expenditures for the current state fiscal year and the next state fiscal year as follows:
 
• For the current state fiscal year, the governor must reduce state personnel expenditures by $17.8 million (.24% of 2009-10 general fund appropriations in the general appropriation bill);
 
• For the next state fiscal year, the governor must reduce total state expenditures by $306.5 million (4.39% of the governor's general fund budget request). These reductions will be made through cuts to state personnel expenditures and to any nonessential state programs, with priority given to the former type of cut.
 
If the governor reduces personnel expenditures from a cash fund, an amount equal to such reduction shall be transferred from the cash fund to the general fund.
 
The bill reduces the judicial branch and legislative agency expenditures and per diem payments for members of the general assembly by .24% for the current state fiscal year and by 4.39% for the next state fiscal year.
 
The bill specifies that the general assembly shall not reduce the amount of the homestead property tax exemption for qualifying senior citizens for property tax years commencing on or after January 1, 2010.
 
Beginning March 1, 2010, the bill also raises the amount that a retail vendor may retain each month when collecting and remitting state sales tax revenues back to 3.33%.
 
Assigned to the State, Veterans, and Military Affairs committee.
 
SB 170 - Concerning continuity of care for patients served by limited services clinics located in retail outlets. By Sen. Steadman and Rep. Primavera, The bill establishes standards for limited services clinics operated within a retail store, supermarket, pharmacy, or similar retail outlet that is not affiliated with a primary care provider and that offers episodic, acute care for minor illnesses and injuries. A limited services clinic is required to:
 
• Develop policies and procedures that identify the limited services the clinic can provide;
 
• Restrict services to persons who are at least 2 years of age;
 
• Review a patient's immunization status in the Colorado immunization information system prior to administering a vaccination;
 
• Report to the Colorado immunization information system regarding vaccinations it administers to children;
 
• Develop a policy for addressing acute vaccine reactions;
 
• Follow accepted and age-appropriate clinical practice guidelines for diagnosing and treating patients in each of its limited services categories and determining when a patient's needs are beyond the scope of services that the clinic provides;
 
• Develop policies and procedures for referring patients and maintain a roster of primary care providers in the geographic area that have requested inclusion on the roster and are accepting new patients from a limited services clinic;
 
• Provide copies of medical records and test results to the patient and, if the patient consents, transmit medical records and test results to the patient's primary care provider, at no cost to the patient.
 
Assigned to the Health and Human Services committee.
 
SB 171 - Concerning the creation of a child protection ombudsman program. By Sen. Newell and Rep. Gagliardi. The bill establishes the child protection ombudsman program as an independent program in the department of human services that shall be operated by the executive director of the state department either directly or by contract with a private nonprofit or public agency or organization. The child protection ombudsman will direct the program. The powers and duties of the ombudsman shall include:
 
• Reviewing and seeking resolution of complaints concerning child protection services made by or on behalf of a child, including requesting and reviewing information relating to the case;
 
• Evaluating and making recommendations for a statewide grievance policy; and
 
• Filing an annual report concerning the duties of the program and recommendations for improvements to the child protection system.
 
The powers and duties of the ombudsman may include:
 
• Reviewing issues raised by members of the community relating to child protection services and making recommendations for resolution of the issues;
 
• Helping to educate the public concerning the prevention of child maltreatment;
 
• Promoting best practices and effective programs relating to the child protection system; and
 
• Recommending statutory, regulatory, budgetary, and administrative changes to improve the child protection system.
 
The program will comply with all state and federal laws relating to the treatment of confidential information. The ombudsman will act independently of the state department and the county departments of social services. Positions taken by the ombudsman may not reflect those of the state department or the county departments.
 
The ombudsman and employees of the program will have qualified immunity from suit and liability except in cases of willful and wanton misconduct.
 
Within 45 days after the effective date of the bill, the executive director shall appoint and convene an advisory work group to assist in developing a detailed plan for the design of the program, including the qualifications of the ombudsman. If the program is administered through a contract, the work group shall also advise the executive director concerning the criteria for the request for proposals issued for the contract. The work group may consist of members who represent county departments, mandatory reporters, families and children who have been involved with the child protection system, child protection advocates, members of the general assembly, and any other person with expertise in child protection. Members of the work group shall serve without compensation and at the pleasure of the executive director.
 
If the executive director is operating the program through a contract, within 30 days after completing the detailed plan for the program, the executive director shall issue a request for proposals; except that the executive director shall not issue the request for proposals unless he or she determines that sufficient moneys are committed or available for awarding and implementing the contract for the program. The proposal submission period, the review of proposals, and the award of the contract shall be completed within 60 days after the issuance of the request for proposals.
 
The bill creates the child protection ombudsman program fund and authorizes the department to seek gifts, grants, and donations for the program. The ombudsman will prepare and submit an annual report concerning the program to the executive director for review and comment, and the executive director will forward the report to the governor and to each member of the health and human services committees of the house of representatives and the senate.
 
At the beginning of the third year after implementation of the program, the state auditor's office will conduct a performance and fiscal audit of the program.
 
Assigned to the Health and Human Services committee.
 
SB 174 - Concerning the regulation of the development of geothermal resources. By Sen. Schwartz. The bill defines "direct use" as the utilization of geothermal resources for commercial, residential, agricultural, public facilities, or other energy needs other than the commercial production of electricity. The bill allow municipalities and counties to designate geothermal development as an activity of state interest under House Bill 74-1041, except for the direct use of such resources. The bill allocates federal mineral lease revenues derived from geothermal resource development to the geothermal resource leasing fund and authorize the executive director of the department of local affairs to distribute the revenues:
 
• To state agencies, school districts, and political subdivisions of the state affected by the development and production of geothermal resources primarily for use by such entities in planning for and providing facilities and services necessitated by such development and production; and
 
• Secondarily to such entities, in consultation with the governor's energy office, for the promotion of the development of geothermal energy resources.
 
The bill specifies that the property right to the following types of geothermal resources are an incident of the ownership of the overlying surface:
 
• Nontributary groundwater; and
 
• Not nontributary groundwater.
 
The bill adopts the reasonable accommodation doctrine regarding relations between surface owners and geothermal resource developers. The bill specifies that a permit from the state engineer is not required for the direct use of a horizontal, closed-loop geoexchange system that does not use a geothermal fluid, as established by the state engineer by rule. Bill steals specifies that "material injury" includes an alteration in the temperature of water only if the alteration adversely affects a valid, prior geothermal right. The bill requires geothermal energy facilities to be valued for the purpose of property taxation in the same manner in which wind or solar energy facilities are valued. Assigned to the Local Government Committee.
 
SB 175 - Concerning the relocation of provisions relating to behavioral health. By Sen. Heath. The bill relocates provisions in statute relating to behavioral health disorders. Assigned to the Health and Human Services committee.

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