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April 21

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In this issue:   April 21, 2014
eLegislative Report from Michael Valdez

Welcome to the 2014 edition of the CBA e-legislative report. This CBA member benefit will be delivered to your Inbox on Monday afternoons and will recap legislation from the current legislative session and the role the CBA plays at the State Capitol.

In addition to updates on the positions taken by the CBA through our Legislative Policy Committee the e-leg report will highlight legislation that is of interest to the practicing bar.

We welcome your feedback. We welcome your questions. Or just drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at mavaldez@cobar.org.

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CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Friday, April 18
The LPC did not meet on Friday, April 18, 2014.

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At the Capitol—Week of April 14

A recap of the committee and floor work follows.

In the House

Monday

Passed on 3rd reading.

  • HB 14-14-1269. Concerning the circumstances under which a person who sells items subject to sales tax must collect such sales tax on behalf of the state. Vote: 36 yes, 26 no, and 3 excused.
  • HB14-1279. Concerning the creation of a state income tax credit to reimburse a business for personal property taxes paid in the state, and, in connection therewith, reducing an appropriation. Vote: 60 yes, 2, no, and 3 excused.
  • HB14-1036. Concerning drunk driving offenses, and, in connection therewith, making and reducing appropriations. Vote: 56 yes, 6 no, and 3 excused.
  • HB14-1144. Concerning measures to improve the performance of district attorneys, and, in connection therewith, making and reducing appropriations. Vote: 58 yes, 4 no, and 3 excused.
  • HB14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. Vote: 62 yes, 0 no, and 3 excused.
  • HB14-1333. Concerning the funding of Colorado water conservation board projects, and, in connection therewith, making an appropriation. Vote: 61 yes, 1 no, and 3 excused.
  • HB14-1344. Concerning the use of electronic means to document transactions related to the business of insurance. Vote: 60 yes, 2 no, and 3 excused.
  • HB14-1322. Concerning the Colorado probate code. Vote: 62 yes, 0 no, and 3 excused. CBA sponsored legislation.
  • HB14-1205. Concerning the veterans assistance grant program. Vote: 51 yes, 11 no, and 3 excused.
  • HB14-1349. Concerning the creation of an exemption from property taxes for qualifying business entities controlled by nonprofit organizations that are formed for the purpose of qualifying for federal tax credits. Vote: 58 yes, 4 no, and 3 excused.
  • SB14-163. Concerning clarifying changes to provisions related to the sentencing of persons convicted of drug crimes. Vote: 62 yes, 0 no, and 3 excused.
  • SB14-160. Concerning removing limitations on a transitional living program for a person with a brain injury. Vote: 56 yes, 6 no, and 3 excused.
  • HB14-1323. Concerning restrictions on the ability of a government entity to access an individual’s personal medical information. Vote: 62 yes, 0 no, and 3 excused.
  • HB14-1214. Concerning an increase in the penalties for certain offenses committed against an emergency medical service provider, and, in connection therewith, making an appropriation. Vote: 51 yes, 11 no, and 3 excused.
  • HB14-1296. Concerning the enforcement of prohibitions against designer drugs by the division of liquor enforcement within the department of revenue. Vote: 55 yes, 7 no, and 3 excused.

Tuesday

Passed 3rd Reading:

  • HB14-1012. Concerning income tax credits that promote investment in Colorado advanced industries, and, in connection therewith, making and reducing appropriations. Vote: 41 yes, 20 no and 4 excused.
  • HB14-1023. Concerning the provision of social workers to juveniles, and, in connection therewith, making and reducing appropriations. Vote: 37 yes, 24 no, and 4 excused.
  • HB14-1032. Concerning the provision of defense counsel to juvenile offenders, and, in connection therewith, making and reducing appropriations. Vote: 40 yes, 22 no, and 3 excused.
  • HB14-1093. Concerning the establishment of the creative district community loan fund, and, in connection therewith, making and reducing appropriations. Vote: 39 yes, 24 no and 2 excused.
  • HB14-1096. Concerning an underfunded courthouse facilities grant program, and, in connection therewith, making and reducing appropriations. Vote: 38 yes, 25 no, and 2 excused.
  • HB14-1101. Concerning a partial business personal property tax exemption for community solar gardens. Vote: 38 yes, 25 no, and 2 excused.
  • HB 14-1124. Concerning in-state tuition classification for American Indians from tribes with historical ties to Colorado, and, in connection therewith, making and reducing appropriations. Vote: 39 yes, 25 no, and 1 excused.
  • HB14-1303. Concerning the receipt of public testimony from remote locations around the state by legislative committees, and, in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB14-1326. Concerning tax incentives for alternative fuel trucks, and, in connection therewith, making an appropriation. Vote: 48 yes, 15 no, and 2 excused.
  • SB14-156. Concerning a requirement that a public benefit corporation file an annual report. Vote: 40 yes, 24 no, and 1 excused.
  • HB14-1347. Concerning statutorily established time periods that are multiples of seven days. Vote: 64 yes, 0 no, and 1 excused.

Wednesday

Passed on 3rd reading.

  • HB14-1037. Concerning enforcement of laws against designer drugs, and, in connection therewith, making and reducing appropriations. Vote: 63 yes, 0 no, and 2 excused.

Thursday

Passed 3rd Reading:

  • HB14-1015. Concerning an extension of the transitional jobs program, and, in connection therewith, making and reducing appropriations. Vote: 39 yes and 26 no.
  • HB14-1297. Concerning an analysis to determine whether oil and gas operations have an impact on human health along the front range, and in connection therewith, making and reducing appropriations. Vote: 38 yes and 27 no.
  • SB14-158. Concerning the harmonization of statutory recall election provisions with the recall provisions in the state constitution to reflect the manner in which contemporary elections are conducted, and, in connection therewith, aligning circulator regulation and petition requirements with initiative and referendum circulator and petition requirements. Vote: 37 yes and 28 no.
  • HB14-1335. Concerning campaign contribution limits that are applicable to candidate committees for candidates who are not affiliated with a major political party. Vote: 60 yes and 5 no.

Friday, April 11

The House did not meet on Friday, April 18.

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In the Senate

Scorecard

Monday

  • SB 14-13. Concerning resources received by a recipient of an old age pension, and, in connection therewith, making and reducing appropriations. Vote: 34 yes, 0 no, and 1 excused.
  • HB 14-1130. Concerning the disposition of moneys charged to borrowers for costs to be paid in connection with foreclosure. Vote: 34 yes, 0 no, and 1 excused.
  • HB 14-1295. Concerning residential mortgage foreclosures, and, in connection therewith, requiring a single point of contact and prohibiting dual tracking. Vote: 27 yes, 7 no and 1 excused.
  • HB 14-1312. Concerning efforts to reduce the number of foreclosures in Colorado, and, in connection therewith, continuing the foreclosure deferment program. Vote: 24 yes, 10 no, and 1 excused.
  • SB 14-152. Concerning the standardization of financial transaction requirements applicable to insurers. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-64. Concerning restricting the use of long-term isolated confinement for inmates with serious mental illness, and, in connection therewith, making and reducing appropriations. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-8. Concerning the creation of the wildfire information and resource center in the division of fire prevention and control in the department of public safety, and, in connection therewith, making and reducing appropriations. Vote: 32 yes, 2 no, and 1 excused.

Tuesday

Passed on 3rd Reading:

  • HB 14-1291. Concerning authorizing a charter school to employ a school security officer by contract to carry a concealed handgun if the person has a valid concealed carry permit. Vote: 34 yes and 1 no.
  • HB 14-1302. Concerning the addition of a judgment against a debtor or transferee who acts with actual intent as an available remedy for a creditor in a fraudulent transfer action. Vot: 35 yes and 0 no.
  • SB 14-179. Concerning the creation of a flood debris cleanup grant account to facilitate watershed cleanup efforts in areas affected by the September 2013 flood, and, in connection therewith, making an appropriation. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-151. Concerning the use of moneys derived from civil penalties imposed on nursing facilities to fund innovations in nursing home care, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-130. Concerning an increase to the personal needs allowance for persons in nursing care facilities, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • SB 14-75. Concerning the registration of motor vehicles for members of the United States armed forces who are deployed outside the United States, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • SB 14-88. Concerning the creation of the suicide prevention commission, and, in connection therewith, making and reducing appropriations. Vote: 22 yes and 13 no.

Wednesday

Passed on 3rd Reading:

  • SB 14-173. Concerning the recommendation that certain persons be offered a test for the hepatitis C virus. Vote: 27 yes and 8 no.
  • HB 14-1123. Concerning implementation of recommendations of the committee on legal services in connection with legislative review of rules and regulations of state agencies. Vote: 33 yes and 2 no.
  • HB 14-1017. Concerning measures to expand the availability of affordable housing in the state, and, in connection therewith, making modifications to statutory provisions establishing the housing investment trust fund, the housing development grant fund, and the low-income housing tax credit. Vote: 19 yes and 16 no.
  • SB 14-174. Concerning the creation of the prosecution fellowship program. Vote: 26 yes and 9 no.
  • SB 14-166. Concerning the development of mobile application software in the Colorado office of economic development that users may access to identify local businesses, and, in connection therewith, making and reducing appropriations. Vote: 27 yes and 8 no.
  • SB 14-157. Concerning the commission of a report by the department of military and veterans affairs that examines the comprehensive value of United States military activities centered in Colorado, and, in connection therewith, making and reducing appropriations. Vote: 34 yes and 1 no.
  • SB 14-87. Concerning issuance of identification cards to people who are lawfully present in the United States but may have difficulty with certain documentary evidence, and, in connection therewith, making and reducing appropriations. Vote: 32 yes and 3 no.
  • SB 14-2. Concerning transferring the safe2tell program to the department of law, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • SB 14-73. Concerning the state income tax credit for the environmental remediation of contaminated land in the state, and, in connection therewith, making and reducing appropriations. Vote: 32 yes, 2 no.

Thursday, April 10

  • SB 14-133. Concerning the regulation of private investigators by the department of regulatory agencies, and, in connection therewith, making appropriations. Vote: 18 yes and 17 no.
  • SB 14-5. Concerning alternative administrative remedies for the processing of certain wage claims, and, in connection therewith, amending the provisions for written notices of a wage claim, and in connection therewith, making and reducing appropriations. Vote: 21 yes and 14 no.

Friday, April 11

The Senate did not meet on Friday, April 18.

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10 Bills of Interest
House Bills

HB 14-1315. Concerning the enactment of certain model acts adopted by the national association of insurance commissioners, and, in connection therewith, enacting the credit for reinsurance model act and the portion of the insurer receivership model act that governs netting agreements.

By Rep. Gardner and Sen. Scheffel.

The bill enacts the credit for reinsurance model act adopted by the national association of insurance commissioners (NAIC), pursuant to which the commissioner of insurance will determine whether and to what extent to give credit to an insurance company's ceding of some of its risks to another insurance company in evaluating the ceding insurance company’s financial fitness.

The bill enacts section 711 of the insurer receivership model act adopted by the NAIC, which specifies the conditions under which insurance companies may offset their obligations to each other when an insurance company becomes insolvent.

On April 1, the bill passed out of the House. The bill is assigned to the Business, Labor, & Technology Committee in the Senate.

HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving.

By Rep. Young and Sen. King.

The interagency task force on drunk driving was established by law in 2006. The bill changes the name of the task force to the Colorado task force on drunk and impaired driving. The bill also removes the director of the division of behavioral health in the department of human services from the board and requires the executive director of the department of human services to appoint 2 experts in substance abuse education and treatment. The bill also designates the chairperson of the peace officers standards and training board, or the chairperson’s designee, as a member of the task force. Finally, the bill requires the executive director of the department of transportation to select a representative of the retail marijuana industry to serve on the task force.

The bill passed out of the House on April 8. In the Senate, the bill was approved by the Judiciary Committee on April 8 and then passed 2nd Reading, with amendments, on April 17.

HB 14-1322. Concerning the Colorado probate code.

By Rep. McLachlan and Sen. Roberts.

The bill repeals and reenacts, with amendments, certain provisions relating to the elective-share of a surviving spouse.

A specific devisee has a right to specifically devised property in a testator's estate at death and, in the absence of other statutorily described property and moneys, a general pecuniary devise equal to the value, as of its date of disposition, of other specifically devised property disposed of during the testator’s lifetime, but only to the extent it is established that ademption would be inconsistent with the testator's manifested plan of distribution or that the testator did not intend ademption of the devise.

To be effective to nominate a personal representative, a will must be declared valid by an order of informal probate by the registrar or by the court.

Under current law, a successor of a decedent may collect from another person any debts owed to the decedent and any personal property belonging to the decedent if the fair market value of the property owned by the decedent at the time of his or her death does not exceed $60,000. Under the bill, this amount may not exceed twice the value of property that the decedent's surviving spouse is entitled to exempt from the estate, as adjusted for cost of living.

An instrument or other property that is payable or deliverable to a decedent or to the estate of a decedent is considered property of the decedent. A successor of the decedent or a person acting on behalf of a successor may endorse an instrument that is so payable and collect such amount.

The duties owed to a successor by a person acting on behalf of the successor in the making, presentation, or other use of an affidavit to collect personal property of a decedent are the same as the duties of an agent to the agent's principal. The breach of this duty is subject to the same remedies as are available under the law with respect to an agent.

If a proof of right is established in a proceeding, any person to whom an affidavit was delivered and who refused, without reasonable cause, to pay, deliver, transfer, or issue any personal property or evidence thereof shall be liable for all costs, including reasonable attorneys' fees and costs, incurred by or on behalf of the persons entitled thereto.

A provision in a trust specifying a method to revoke or amend the trust does not make the specified method exclusive unless the method is referred to as the “sole”, “exclusive”, or “only” method of revoking or amending the trust or the provision includes similar language manifesting the settlor’s intent that the trust may not be revoked or amended by any other method.

The bill sets forth certain duties and powers of trustees and trust advisors.

This bill is CBA sponsored and was developed by the Trusts and Estates Section of the Bar Association.

The bill passed out of the House on April 14. It is assigned to the Judiciary Committee; a committee hearing is scheduled for Wednesday, April 21 at 1:30 p.m.

HB 14-1323. Concerning restrictions on the ability of a government entity to access an individual's personal medical information.

By Rep. Primavera and Sen. Lundberg.

The bill prohibits the department of revenue from accessing an individual's personal medical information or medical record without the individual's consent. If a department employee authorizes the department, in its role as an employer, to access his or her personal medical information or medical record in connection with an employment-related request, occurrence, or claim, such as a request for a workplace accommodation or for family medical leave, the employee's consent applies for the duration of the request, occurrence, or claim.

The bill does not preclude the department from accessing an invoice, receipt, or other documentation of a sale of a prescription drug or other item exempt from sales tax as long as:

  • Personal medical information or a medical record is not contained in the documentation; and
  • Any information that identifies or could be used to identify an individual patient or that indicates a patient’s diagnosis or treatment plan is redacted from the documentation.

Additionally, the department is not precluded from obtaining and using a written medical opinion in determining physical or mental fitness to operate a motor vehicle in accordance with procedures authorized by law.

The bill creates the government access to personal medical information task force to review, analyze, and make recommendations regarding the ability of state and local government departments and agencies to access, use, and distribute personal medical information. The governor appoints representatives from impacted state departments and universities and representatives from or of quasi-governmental entities, local governments, health care providers, health plans, mental health care consumers, consumer advocacy groups, consumers with chronic illnesses, consumers with cancer, and patient privacy rights groups to serve on the task force and is to invite the state auditor or his or her designee to participate. The task force is to meet no more than four times between July 15, 2014, and November 1, 2014, and is to submit its report and recommendations to specified legislative committees by November 1, 2014. Additionally, the task force is to present its report to the legislative committees during hearings held under the “State Measurements for Accountable, Responsive, and Transparent (SMART) Government Act.”

The bill passed out of the House on April 14. It is assigned to the Health & Human Services Committee.

HB 14-1344. Concerning the use of electronic means to document transactions related to the business of insurance.

By Rep. Rosenthal and Sen. Tochtrop.

The bill allows certain notices and other documents related to insurance coverage to be sent electronically to an e-mail address specified by the policyholder if the policyholder consents to receiving the documents electronically. Consent may be withdrawn at any time, reinstating the insurer’s obligation to provide the documents in hard copy form and deliver them personally or by regular mail as the case may be.

The bill also allows standard insurance policies and endorsements to be posted on an insurer’s web site if:

  • They do not contain personally identifiable information;
  • Policyholders are given reliable and current information on how the documents may be accessed; and
  • Access can be obtained using programs or applications that are widely available on the Internet and free to use.

The bill passed out of the House on April 14. It is assigned to the Business, Labor, & Technology Committee.

Senate Bills

SB 14-183. Concerning an increase in the maximum term of a business incentive agreement that a local government enters into with a taxpayer who pays business personal property tax.

By Sen. Heath and Rep. Pabon.

Counties, municipalities, and special districts (local governments) are currently authorized to negotiate an incentive payment or credit with a taxpayer that pays business personal property tax if:

  • The taxpayer establishes a new business facility;
  • The taxpayer expands an existing business facility; or
  • There is a substantial risk that the taxpayer will relocate an existing facility out of state.

These payments or credits are included in an agreement that is commonly known as a business incentive agreement. The maximum term of a business incentive agreement is 10 years, including the term of any original agreement being renewed. The bill increases the maximum term of a business incentive agreement to 35 years, which does not include the term of any prior agreement.

On April 14, the Business Labor, & Technology referred the unamended bill to the full Senate. The Senate approved the bill on 2nd Reading on April 17.

SB 14-184. Concerning oversight of the industrial hemp program.

By Sen. Schwartz and Rep. Coram.

Current law limits a person who holds a registration to grow industrial hemp for research and development purposes to growth outdoors and on not more than 10 acres. The bill removes these limitations. The bill also changes the time period during which a person who wishes to grow industrial hemp may apply to the department of agriculture (department) from May first of the year in which the person wishes to grow hemp to prior to planting.

The bill requires the department to test at least 80% of the hemp crop in the industrial hemp registration program. The bill allows the general assembly to make general fund appropriations to support the program.

The bill exempts state-accredited research institutions that are engaged in research and development from the industrial hemp testing program. The bill allows a research and development registrant to use or destroy hemp that exceeds delta-9 tetrahydrocannabinol concentration limits established by the department in a manner approved and verified by the department.

The bill requires the department to administer an industrial hemp grant program that is funded through registration fees and moneys from the medical marijuana cash fund. The grants allow state institutions of higher education to conduct the research. The bill creates the industrial hemp research grant program fund.

The bill allows a person to process, sell, and distribute hemp cultivated by a registered person or to sell hemp products produced from the hemp.

On April 15, the Senate Local Government referred the amended bill to the Consent Calendar for consideration on 2nd Reading.

SB 14-190. Concerning criminal discovery, and, in connection therewith, creating a statewide discovery sharing system, a criminal discovery surcharge, civil immunity for district attorneys that make a good-faith effort to redact information from discovery documents, and making an appropriation.

By Sen. Lambert and Rep. Gerou.
Joint Budget Committee.

In 2013, a discovery task force (task force) was convened to develop recommendations regarding criminal discovery systems and costs. The task force recommended creating a statewide discovery sharing system (system). The bill turns the task force into the discovery project steering committee (committee). The committee shall develop a request for proposal and selection process for choosing a vendor to develop the system. The committee shall make a recommendation to the Colorado district attorneys council (CDAC) regarding the vendor after the application process is complete. CDAC shall select a vendor to develop the system after the application and selection processes are complete. The committee shall develop benchmarks and contractual requirements for the project. CDAC shall enter into a contract with the selected vendor to complete the system by June 30, 2016.

The general assembly shall appropriate moneys to the judicial department for allocation to CDAC for development and maintenance of the system. The bill creates a criminal surcharge to fund the development and maintenance of the system. A $10 surcharge applies to each felony conviction, and a $5 surcharge applies to each misdemeanor conviction if the defendant is represented by private counsel or appears pro se.

The bill gives civil immunity to district attorneys who make a good-faith effort to redact all information legally required to be redacted and provide discovery documents that contain information that should have been redacted.

The bill is assigned to the Judiciary Committee.

SB 14-191. Concerning the procedures for resolution of workers’ compensation claims.

By Sen. Tochtrop.

The bill explicitly authorizes the director of the division of workers’ compensation (director), or an administrative law judge (ALJ) presiding over a workers’ compensation case, to consider the medical treatment guidelines adopted by the director in determining whether certain medical treatment is appropriate.

The bill requires the director to adopt rules governing the approval of settlements in workers’ compensation cases, including procedures for electronic transmission of documents and verification of signatures.

The bill adjusts the measurement of time within which a hearing must commence, from 100 days after the date the hearing is set to 120 days after the date of service of the request for hearing or the notice to set.

The bill extends the time for objection to a summary order by an ALJ from 7 days to 10 days.

The bill allows the director or an ALJ to summon out-of-state parties to appear, either in person or by telephone, at a hearing or deposition and authorizes sanctions for a failure to appear.

The bill sets a 30-day deadline for the director, ALJ, or administrative panel to comply with the directions accompanying the remand of a case or order by an appellate tribunal.

The bill allows a claimant to receive $75 per day, in addition to transportation and lodging, if the claimant is required to travel for a medical examination requested by the employer and misses work as a result.

The bill also requires an authorized physician to give written notice, with an explanation, to the claimant and the employer if the physician refuses to treat the claimant or discharges the claimant from medical care for a nonmedical reason. After receiving the notice, the employer has 15 days to select another physician before the claimant is allowed to select a physician independently.

The bill adjusts the maximum amount payable in a lump-sum settlement, replacing the current limit of $60,000 with a range of $80,868 to $161,734, depending on the number of claimants, to be adjusted periodically whenever adjustments are made to the state average weekly wage.

The bill is assigned to the Business, Labor, & Technology Committee.

SB 14-193. Concerning conforming Colorado law on location information with the fourth amendment as interpreted by the United States supreme court in United States v. Jones.

By Sen. Carroll and Rep. Singer.

A United States supreme court decision held that the use of a GPS device to monitor a vehicle’s movement constituted a search requiring the government to obtain a search warrant. With certain specified exceptions, the bill prohibits a governmental entity from obtaining location information from an electronic device without first obtaining a search warrant.

If location information or evidence derived from location information is used in a court proceeding, all parties must receive a copy of the search warrant and application at least 10 days prior to the proceeding. A judge may waive the 10-day requirement in certain circumstances.

The bill is assigned to the Judiciary Committee.