From the Colorado Bar Association - Department of Legislative Relations
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/
• CBA Legislative Policy Committee (LPC)
Highlights of LPC activity from the meeting on Friday, March 5:
It was mostly Criminal Law section day in the LPC on Friday, March 5. The LPC voted to accept the recommendations from the Criminal Law section on four pieces of legislation. HB 1338 - Probation Eligible Two Prior Felony, HB 1352 - Controlled Substance Crime Changes, HB 1090 - Jail Sentence Driving Under Restraint, and HB 1334 - Public Indecency and Indecent Exposure all were given support from the CBA.
Briefly & generally, the bills do the following:
• HB 1338. The bill allows a person who has 2 or more prior felony convictions to be eligible for probation unless he or she has at least one prior conviction of a crime of violence, manslaughter, 2nd degree burglary, robbery, theft, or a felony offense committed against a child.
• HB 1352. The bill changes the classification, scope, definitions, and other specific provisions of certain drug-related crimes and the crime of fraud and deceit.
• HB 1090. The bill eliminates the mandatory 5-day jail sentence for a person who is convicted of driving a motor vehicle or off-highway vehicle upon any highway of the state with knowledge that his or her license or privilege to drive, either as a resident or a nonresident, is under restraint for any reason other than conviction of driving under the influence, DUI per se, driving while ability impaired, habitual user, or underage drinking and driving.
• HB 1334. The bill expands the definition of the crime of public indecency, which is a class 1 petty offense, to include knowingly exposing one's genitals in a way that is likely to cause affront or alarm to another person. If a person has been previously convicted of that same act of public indecency, the bill raises the penalty from a class 1 petty offense to a class 1 misdemeanor.
The LPC also voted to accept the recommendation from the Juvenile Law section and voted to support, if amended, SB 171 - Create Child Protection Ombudsman Program. The Juvenile law section supports the intent of the bill but has requested an amendment to clarify that the legislature does not have oversight over the conduct of attorneys and judges. The basic intent of the bill is to establish 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.
• Bills of interest and the activity from the week of March 1:
In the House
HB 1215 - Concerning the use of cash bond deposits after the discharge of the bond to satisfy outstanding court-ordered debts. By Rep. Waller and Sen. Scheffel. Under current law, when a defendant is no longer liable for a cash bond, the court returns the deposit for the bond to the depositor. As introduced, the bill requires the court to apply the bond deposit to satisfy any outstanding court costs, fees, fines, restitution, or surcharges the defendant may owe if the defendant is the depositor; the Judiciary Committee amended the bill to make it permissible for the court to apply the bond to satisfy costs, fees, etc. In cases in which the defendant is not the depositor and the depositor consents in writing, the court may apply the bond deposit toward court costs, fees, fines, restitution, or surcharges owed by the defendant. On February 25, the Judiciary Committee amended the bill, as noted above, and referred the bill to the Appropriations Committee.
HB 1218 - Concerning information in the central registry of protection orders. By Rep. Waller and Sen. Newell. The bill clarifies that the central registry of protection orders shall contain information on the amount of bail and conditions of bond in any case in which the court has entered a protection order and the highest classified crime charged in the case, if any. Amended bill passed out of the House on March 3.
HB 1221 - Concerning the continuation of the licensing of river outfitters by the board of parks and outdoor recreation, and, in connection therewith, implementing the sunset review recommendations of the department of regulatory agencies. By Rep. Curry and Sen. Schwartz. Sunset Process - House Agriculture, Livestock, and Natural Resources Committee. The bill implements the sunset review recommendations of the department of regulatory agencies regarding river outfitters pursuant to the provisions of the sunset law, with modifications. The bill extends the river outfitting licensure program until September 1, 2019. The bill broadens the definition of "advertise" in connection with the licensure requirement. The bill also directs the board of parks and outdoor recreation to adopt a schedule for license renewals, with license terms not to exceed 3 years, and allows the length of license terms to be staggered so that approximately equal numbers of licensees renew their licenses each year. The bill requires the board to e-mail a notice of every proposed rule to each licensee.
Specifies that, of the 500 river miles currently required to be qualified as a trip leader, at least 250 must be from regulated trips and no more than 250 may be from nonregulated trips;
Requires all guides to be trained in cardiopulmonary resuscitation; and
Repeals the guide qualification exemption for designated faculty members of institutions of higher education in charge of water sport activity courses.
The bill makes a river outfitter that operates a river-outfitting business without a valid license liable for an administrative penalty of 5 times the annual licensing fee. The bill recreates the river outfitter advisory committee, consisting of 2 river outfitters and one representative of the division of parks and outdoor recreation, and directs the committee to make recommendations concerning rules and proposed rules, including notification to outfitters of inspections and division personnel changes and safety and customer and outfitter interaction training standards for division rangers who oversee regulated trips. The bill repeals the advisory committee on September 1, 2019. On March 5, the Appropriations committee referred an amended version of the bill to the full House for consideration on 2nd Reading.
HB 1222 - Concerning continuation of the requirement that a collection agency maintain an office in Colorado. By Rep. Middleton and Sen. Carroll. Sunset Process - House Business Affairs and Labor Committee. This bill continues indefinitely the requirement that a collection agency maintain an office in Colorado, adding the requirements that the office accept a payment and notify consumers of the office. On March 1, an amended version of the bill passed out of the House. The bill has been assigned to the Business, Labor, and Technology Committee in the Senate.
HB 1226 - Concerning an alternative approach for a county department of social services to use in addressing certain intrafamilial child abuse or neglect cases. By Rep. Kefalas and Sen. Spence. The bill creates the differential response pilot program for certain county departments of social services to use in addressing intrafamilial abuse or neglect cases that are deemed to be of low or moderate risk according to an assessment performed by each participating county department. The state department of human services and participating county departments shall administer the pilot program. The participating county departments, in administering the pilot program, shall cooperate with local community service organizations in addressing known or suspected incidents of intrafamilial abuse or neglect. On February 26 an amended version of the bill passed out of the House. The bill has been assigned to the Health and Human Services committee in the Senate.
HB 1227 - Concerning compliance with financial responsibility requirements of the "Health Care Availability Act" by maintaining insurance through approved nonadmitted insurers authorized by law to insure in Colorado. By Rep. DelGrosso and Sen. Tochtrop. Current law requires physicians, dentists, and health care institutions to comply with minimum financial responsibility requirements for professional liability insurance coverage as a condition of active licensure or authority to practice in Colorado. The bill clarifies that this financial responsibility requirement may be satisfied by maintaining insurance through approved nonadmitted insurers authorized by law to insure in Colorado. The bill makes a conforming amendment contingent on the possible passage of other legislation affecting this law. On March 1, an amended version of the bill passed out of the House. The bill has been assigned to the Business, Labor, and Technology Committee in the Senate.
HB 1229 - Concerning authentication requirements for verbal orders in a hospital. By Rep. Pace and Sen. Newell. The bill requires that a licensed hospital require that all verbal orders be authenticated by the physician or responsible individual who has the authority to issue a verbal order in accordance with hospital and medical staff polices. The bill requires that a verbal order be authenticated within 48 hours after the time the order was made unless a read-back and verify process is followed. If a read-back and verify process is followed, the order may be authenticated within 30 days after the date the order was made. Current federal law requires a 48-hour authentication period unless state law designates a specific time frame for the authentication of verbal orders. On February 25, an amended version of the bill passed out of the House. The bill has been assigned to the Health and Human Services committee in the Senate.
HB 1233 - Concerning the relocation of the crime of stalking in the Colorado revised statutes. By Rep. Ryden and Sen. Newell. The bill relocates the crime of stalking in the statutes. The unamended bill passed out of the House on February 19. The bill has been assigned to the Judiciary Committee in the Senate.
HB 1234 - Concerning the fair settlement of claims for benefits under an insurance policy. By Rep. Primavera. Current law authorizes double benefits, attorney fees, and costs to a first-party claimant whose claims for benefits under an insurance policy have been delayed or denied without a reasonable basis for that action. The bill establishes a presumption of unreasonableness when an insurer either:
Denies or delays a claim without a reasonable basis for the action; or
Denies or delays the payment of a claim for medical benefits or a request for authorization for medical services by a first- or third-party claimant; the decision to delay or deny payment of the medical claim relates to medical necessity, appropriateness, or reasonableness; and the decision is made by a person who is not licensed in good standing in Colorado and in active clinical practice in the same field or specialty area as the field or specialty area to which the medical claim or requested medical service relates.
The bill extends the remedies available under current law to third-party claimants who assert a claim for medical benefits or request for authorization for medical services against an insured under a liability policy when the claim is denied or delayed as described in the second bullet, above. Assigned to the Judiciary Committee.
HB 1240 - Concerning the foreclosure deferment process for residential properties. The bill clarifies House Bill 09-1276, passed by the general assembly in 2009; that bill established a 90-day foreclosure deferment period for eligible borrowers. This legislation gives general rule-making authority to the division of housing in the department of local affairs related to the deferment process. The bill clarifies that the notice of opportunity for foreclosure deferment may not be posted prior to the date the public trustee determines that the documents filed for the commencement of the foreclosure are complete and accurate.
The bill requires that the notice of opportunity for foreclosure deferment include a telephone number for the holder and, if applicable, the attorney for the holder and the public trustee foreclosure number. The bill requires a foreclosure counselor to inform the holder if an eligible borrower who qualifies for a foreclosure deferment chooses not to participate. The bill prohibits an eligible borrower from qualifying for a foreclosure deferment if the borrower has transferred title to the property to another party. On March 3, an amended version of the bill passed out of the, House.
HB 1242 - Concerning the implementation of a uniform application form for individual health benefit plans by the commissioner of insurance. By Rep. Apuan and Sen. Tochtrop. The bill requires the commissioner of insurance to implement a uniform application form for individual sickness and accident health benefit plans. The bill requires the commissioner to take recommendations from members of the insurance industry regarding the form and content of the uniform application form and to promulgate rules to require its exclusive use by the industry after January 1, 2012. The bill is assigned to the State, veterans, and Military Affairs committee.
HB 1244 - Concerning allowing an heir of a deceased physician shareholder of a professional service corporation to become a shareholder of the corporation. By Rep. Labuda and Sen. Mitchell. The bill allows an heir of a person licensed to practice medicine who is a shareholder in a professional service corporation to become a shareholder of the corporation if the physician shareholder dies. The bill specifies that when the heir ceases to be a shareholder, provision is made for the shares to be reacquired by the corporation or by a person actively practicing medicine in the offices of the corporation. On February 22, an amended version of the bill passed out of the House. The bill has been assigned to the Judiciary committee in the Senate.
HB 1247 - Concerning the continuation of the workers' compensation classification appeals board. By Rep. Gagliardi and Sen. Carroll. Sunset Process - House Business Affairs and Labor Committee. This bill implements the recommendations of the department of regulatory agencies in its sunset review of the workers' compensation classification appeals board by continuing the board until 2021. On February 19, the unamended bill passed out of the House. The bill has been assigned to the Judiciary committee in the Senate.
HB 1249 - Concerning expedited residential foreclosure sales. By Rep. Labuda and Sen. Johnston. Currently, the initial foreclosure sale date for residential property by a public trustee is set between 110 and 125 calendar days after the recording of the notice of election and demand. For a 5-year period, the bill creates a method for an eligible holder of an evidence of debt to elect to have an expedited sale of residential property, which will occur between 40 and 55 calendar days after the recording of the notice. In order for the expedited sale to be conducted, a court must issue an order for expedited sale, and a copy of the order must be filed with the public trustee. The court shall only issue an order if, among other things:
The property has been abandoned; or
The grantor of the deed of trust requests the order for expedited sale.
The bill establishes that an affidavit that meets certain criteria is prima facie evidence of abandonment.
If an expedited sale is set, the bill makes the following modifications to a public trustee's process:
Replaces the original mailing list with an expedited mailing list, which is filed later and includes all persons on an amended mailing list;
Eliminates notice related to a foreclosure deferment;
Eliminates the first mailing of the combined notice;
Requires the second mailing of the combined notice to be sent earlier; Establishes a deadline for delivering an amended mailing list;
Requires a copy of a section of the expedited sale law to be mailed with the combined notice;
Reduces the publication of the combined notice to 3 times and requires the publication to be completed more than 5 days prior to the sale; and
Limits a holder's ability to request a continuance of the expedited sale.
The bill also requires an expedited proceeding to be withdrawn in certain circumstances and specifies that an expedited sale shall not apply to a judicial foreclosure. On March 4, the Judiciary Committee amended the bill and referred it to the full House for consideration on 2nd Reading.
HB 1251 - Concerning file retention by attorneys of record in felony criminal cases. By Rep. Court and Sen. Steadman. The bill requires an attorney who is an attorney of record in a criminal case that results in a conviction for a felony to retain his or her case file for a specified period. The bill is assigned to the Judiciary Committee; the bill is being held up while attempts to initiate a rule change are in process.
HB 1252 - Concerning health care services for breast cancer screening. By Rep. Primavera and Sen. Boyd. The bill requires that breast cancer screening with mammography be individualized for each patient and that if a health care provider deems it to be medically appropriate, a breast cancer screening shall be a covered benefit. In 2009, the general assembly changed the required breast cancer screening coverage provisions to tie them to the recommendations of the U.S. preventive services task force. This bill requires coverage for more frequent breast cancer screening than the task force recommendations if the screening is deemed medically appropriate. On March 4, the Judiciary committee amended the bill and referred the bill to the House for consideration on 2nd Reading.
HB 1263 - Concerning a limit on the state income tax benefit for compensation paid by a business for personal services rendered. By Rep. Pommer and Sen. Boyd. For purposes of calculating the state income tax, the bill increases Colorado taxable income by an amount equal to the amount of salary or other compensation over $250,000 paid to an individual that is claimed as a federal deduction by a taxpayer. The bill is assigned to the Finance Committee. Action on the bill is delayed pending the announcement of the revenue projections on March 20 – if the projections are encouraging, the bill will most likely be withdrawn at the request of Rep. Pommer. The CBA LPC has voted to oppose the legislation.
In the Senate
SB 178 - Concerning fairness in workers' compensation health care provider review processes, and, in connection therewith, requiring credentialing, quality, and service review and performance initiative programs to be transparent, include objective and standardized criteria that are applied consistently, and provide minimum due process to providers. By Sen. Hodge and Rep. Gerou. The bill creates the "Provider Review and Disclosure Act". The bill requires workers' compensation insurers to include quality and patient data in performance initiatives. The bill also requires such initiatives to be based on objective data that is available to affected providers. The bill requires credentialing, quality, and service reviews to be based on objective criteria that are applied consistently. The act provides due process for health care providers, including disclosure of the processes followed, the provider's rights, and an appeal process to challenge results and decisions relating to performance initiatives. The bill is assigned to the Judiciary Committee.
SB 179 - Concerning the voting rights of persons involved in the criminal justice system. By Sen. Steadman. Existing law prohibits a person serving a sentence of detention or confinement in a correctional facility, jail, or other location for a felony conviction or serving a sentence of parole from being eligible to register to vote or to vote in any election. The bill clarifies that a person on inmate status for a felony conviction is not eligible to register to vote or to vote in any election. The bill further permits any individual who is not on inmate status to register or vote in any election. The bill clarifies that inmate status does not include an individual who is no longer confined involuntarily in a municipal, county, or state prison, jail, detention facility, or other location while serving a sentence of parole. The bill also delineates various circumstances affecting offenders that do not constitute inmate status.
The bill places duties upon county sheriffs, probation officers, parole officers, administrators of juvenile facilities, and administrators of community corrections programs to facilitate the registration for voting purposes of, and voting by, an individual not on inmate status who is in the custody of such official or assigned to the facility the official administers. The bill further specifies that such duties shall include advising the individual of his or her voting rights, providing the individual with information as to the manner in which the individual may register and cast a ballot, providing the individual with voter information materials, and, in applicable cases, ensuring that any mail or mail-in ballot cast by the individual is timely delivered to the designated election official. The bill exempts county sheriffs or their designees from any restriction under law on the number of mail or mail-in ballots an eligible elector may deliver in person to the designated election official.
The bill make conforming amendments to the statutory provisions governing the powers and duties of county sheriffs, probation officers, parole officers, and administrators of community corrections programs and juvenile facilities. The bill makes conforming amendments that would allow confined prisoners awaiting trial to register and vote in municipal elections. The bill is assigned to the Judiciary Committee.
SB 180 - Concerning the development of a smart grid for Colorado, and, in connection therewith, convening a task force to recommend legislative and administrative measures to encourage the orderly implementation of smart grid technology in Colorado. By Sen. Williams and Rep. A. Kerr. The bill creates a 9-member Colorado smart grid task force to gather information and report to the general assembly and the Colorado public utilities commission on issues related to the implementation of a smart energy grid in Colorado. The task force's initial report is due by January 20, 2011, and the task force is directed to meet periodically to update the information in the report. The bill provides for funding of the task force's activities through gifts, grants, and donations and contains a 5-year sunset provision. The bill is assigned to the Local Government and Energy Committee.