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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/
My apologies for the delay in delivery - we had a computer glitch yesterday.
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CBA Legislative Policy Committee (LPC) activity
This segment is a quick re-cap of positions taken by the CBA’s Legislative Policy Committee (LPC). The LPC meets weekly to consider request from sections and committees to take positions on pending legislation. This section is a weekly feature of the e-legislative report.
Friday, February 22. The LPC approved a compromise that was reached between three big sections of the CBA. The Real Estate, Elder and Trusts & Estates sections came together to support HB 1248 – Concerning Joint Tenancy in Real Property with an important amendment. As introduced the bill reestablishes the four common law unities of time, title, interest, and possession to create a joint tenancy. The compromise is a shared recognition that a joint tenancy can be held in unequal shares. These sections have been working on finding middle ground since the state Supreme Court’s ruling in Taylor v. Canterbury in 2004. The bill was unanimously approved by the House Local Government Committee and sent to the full House for consideration on 2nd Reading.
Bar Bill Advances. HB 1153 – Concerning Probate Code Fiduciary Oversight is legislation designed to give a probate judge a better “Judicial Toolbox” was given unanimous support by the House Judiciary Committee on Wednesday, February 20. The bill is the product of the Trusts & Estates Section with the assistance of the Elder Law Section. The bill consolidates, clarifies and organizes judicial options that arguably exist into a central location in the Probate Code. Judges will be able to better manage fiduciaries that are under the jurisdiction of a probate court.
20 BILLS OF INTEREST (and status):
In the House
1. HB 1242 - Concerning reimbursement for providers of home care under the "Colorado Medical Assistance Act". By Rep. Primavera and Sen. Johnson. Requires the department of health care policy and financing ("state department") to determine the conditions under which a home care service provider shall be paid an increased hourly rate for home health services under the "Colorado Medical Assistance Act" ("the Act") provided on certain holidays and at certain hours of the day as determined by the state department.
Allows the state department to determine the differential rate. Allows for mileage reimbursement for home care service providers who provide home health services pursuant to the Act in rural counties with a population of less than 15,000 people.
Removes the number of service units limitation for an eligible family member who provides personal care services to an elderly, blind, disabled, HIV/AIDS infected, or brain-injured relative pursuant to the Act. Amended and approved by the Human Services Committee and referred to the Appropriations Committee.
2. HB 1246 - Concerning the creation of a registry of caregivers who are deemed to have a substantiated allegation of wrongdoing against a person with a developmental disability. By Rep. Green. Creates in the division for developmental disabilities ("division") in the department of human services ("department") a registry of caregivers with a substantiated allegation of exploitation, mistreatment, neglect, physical abuse, or sexual abuse of a person with a developmental disability ("registry"). Defines substantiated allegation ("allegation"). Requires a service agency or community centered board to check the registry prior to employing a caregiver for a person with a developmental disability. Further requires a service agency or community centered board to report an allegation to the division. Encourages community residential homes providing services and supports to persons with developmental disabilities to check the registry before employing a caregiver and to report any allegations to the division. Provides immunity to the division and community centered boards. Requires the information on the registry to remain confidential. Gives the department rulemaking authority. Allows an individual to petition for removal from the registry for good cause. Requires the department to provide written notice to a caregiver prior to placing him or her on the registry and to provide annual written notice to all caregivers concerning the registry. Amended and approved by the Human Services Committee and referred to the Appropriations Committee.
3. HB 1247 - Concerning procedures for the determination of whether a sex offender is a sexually violent predator. By Rep. Primavera and Sen. Veiga. Requires the department of corrections, if it receives a mittimus that does not indicate whether the court determined whether a defendant is a sexually violent predator, to notify the court and, if necessary, return the defendant to the custody of the sheriff for transport to the court for the determination. Assigned to the Judiciary Committee.
4. HB 1253 - Concerning the creation of the judicial department information technology cash fund. By Rep. White and Sen. Morse. Creates the judicial department ("department") information technology cash fund ("fund"), which shall consist of certain fees and cost recoveries that are not otherwise required by law to be deposited in another fund. Requires the moneys in the fund to be appropriated to the department for any expenses related to the department's information technology needs.
Requires any unexpended and unencumbered moneys to remain in the fund at the end of a state fiscal year. Exempts the fund from the requirement that moneys in excess of the target reserve are required to be transferred to the general fund at the end of a state fiscal year. Approved by the House Judiciary Committee and referred to the Committee on Appropriations.
5. HB 1259 - Concerning increased accountability requirements for special districts. By Rep. M. Carroll. States that a special district may provide services only within the territory of the special district. Requires a special district that currently provides services outside its territory to file a petition within a specified time to modify its service plan in order to provide services only within its territory.
Requires every special district to file an annual report with any county or city in which the district is located, the division of local government, and the state auditor, regardless of whether the report is requested by the county or city.
Requires regular special district elections to be held on the date of a general or coordinated election. Requires the board of directors of a special district:
- To send a voter information card, including information about the election and a returnable portion for electors to request permanent mail-in voter status, to each household where one or more active eligible electors of the special district resides no later than 15 days before a special election;
- To maintain a list of eligible electors of the special district who have applied for permanent mail-in voter status;
- To obtain from the clerk and recorder of each county in which the special district is wholly or partially located a list of eligible electors who have applied to the clerk and recorder for permanent mail-in status; and
- In an election conducted by the board, to send a mail-in ballot to each eligible elector who has applied for permanent mail-in status.
Assigned to the Local Government Committee.
6. 1263 - Concerning modifications to victim notification requirements. By Rep. Labuda. Clarifies the circumstances under which a victim has a right to be notified with respect to court actions concerning a defendant's bond.
Requires a district attorney to notify a victim of the filing of charges if the district attorney is filing charges that are lower than those upon which the defendant was arrested and the lower charge may result in a lower bond amount.
Requires notification of the victim in court proceedings where the defendant has requested a modification of the no contact provision of a criminal protection order. Amended and approved by the Judiciary Committee and referred to the full House on 2nd Reading.
7. HB 1264 - Concerning statewide electronic read-only access to specific information maintained by the judicial department. By Rep. Roberts. Allows statewide electronic read-only access to the name index and register of actions of certain public case types to county departments and attorneys who represent the county departments, the office of the state public defender, guardians ad litem under contract with the office of the child's representative or authorized by the office of the child's representative to act as a guardian ad litem, attorneys under contract with the office of the alternate defense counsel, respondent parent counsel appointed by the court and paid by the judicial department, and criminal justice agencies. Specifies which people or agencies shall have access to court records of juvenile delinquency proceedings and dependency and neglect records and information.
Authorizes the supreme court to adopt rules regarding access to the name index and register of actions. Requires all agencies with access to ensure that individuals who will be using the system receive training on appropriate usage and confidentiality of register of action information. Defines terms. Makes conforming amendments and legislative declarations. Approved by the Judiciary Committee and referred to the Appropriations Committee.
8. HB 1274 - Concerning the modification of the address confidentiality program administered by the secretary of state. By Rep. King. Makes the following changes to the address confidentiality program for victims of domestic violence, a sexual offense, or stalking that is administered by the secretary of state:
- Changes the way that an application assistant is designated;
- Eliminates restrictions on the substitute address designated by the secretary of state;
- Eliminates the requirement that a program application be delivered to the secretary of state;
- Permits a family member of a program applicant other than a parent, spouse, or child to become a program participant, if such person is necessary to ensure the safety of the applicant;
- Requires the consent of any person other than the applicant who is 18 or older to be a program participant; and
- Requires a school district to use a substitute address for admission purposes, with the secretary of state verifying student enrollment information.
Approved by the Judiciary Committee and referred to the House for 2nd Reading.
9. HB 1275 - Concerning certain organizations that incorrectly filed the annual report required to maintain property tax-exempt status. By Rep. T. Carroll and Sen. Isgar. Forgives the balance of property taxes owed by a religious, charitable, or educational organization on or after a specified date, if the organization:
- Filed an application for exemption and was granted an exemption from general taxation on real and personal property;
- After receiving an exemption from property tax, filed an annual report required for the continuation of property tax-exempt status but filed the report incompletely or incorrectly; and
- Was denied tax-exempt status for one or more property tax years as a result of the incomplete or incorrect filing and received a property tax bill for such year or years.
Allows any religious, charitable, or educational organization that paid all or any portion of a property tax bill for a year or years in which the organization was denied tax-exempt status to file a petition for abatement or refund of the taxes paid.
Authorizes the state board of equalization to waive the filing deadline for the annual report that a religious, charitable, or educational organization is required to file to maintain its property tax-exempt status if the report is filed by the filing deadline but is incomplete or incorrect when filed.
Passed the House and awaiting assignment to a committee of reference in the Senate.
10. HB 1280 - Concerning protection of water rights used by the Colorado Water Conservation Board for instream flows under contracts with water rights owners. By Rep Fischer and Sen. Schwartz. Specifies that the time during which the Colorado water conservation board uses water rights for instream flow purposes pursuant to a contract is excluded from the water court's historic consumptive use analysis and shall not be considered as abandonment of the water right. Requires the board to:
- Make a finding that the lessor or lender of the water rights is not entering into the contract for speculative purposes;
- Maintain records of how much water the board uses under the contract each year it is in effect; and
- Install a measuring device to record how much water flows out of the instream flow reach unless a suitable measuring device already exists.
Prohibits the water court from approving a change decree in relation to such a contract unless it makes a finding that the lessor or lender of the water rights has not entered into the contract for speculative purposes. Specifies that an application for a change of a water right located in the same stream basin as an instream flow water right reach on which the board has used water provided under such a contract may not claim any historic consumptive use resulting from water that was made available by the contract. Amended and approved by the Agriculture, Livestock, & Natural Resources Committee and referred to the House for 2nd Reading.
11. HB 1306 - Concerning payment of amounts due under a construction agreement. By Rep. Riesberg. Enacts the "Construction Prompt Payment Reform Act of 2008". Makes a legislative declaration. Establishes the scope of the act. Authorizes a contractor or subcontractor to request a written statement of the owner's ability to fulfill contract obligations and requires the owner to provide the statement. Prohibits the contractor and subcontractor from disclosing the statement.
Requires, with some exceptions, construction agreements that require more than one month to complete to provide for progress payments every 30 days upon submission of the invoice. Sets standards and time lines for refusing to pay an invoice and for curing problems. Clarifies that failure to disapprove a progress payment invoice is not a waiver of claims. Requires the owner to pay invoices within 25 days if subcontractors are used or 30 days if not. Requires the contractor to forward progress payments to the subcontractor within 5 days or the end of the 30-day billing cycle. Requires a subcontractor to submit a list of suppliers of goods and services to the contractor with the invoice. Requires the owner, contractor, or subcontractor to pay at least 12% on unpaid invoices. Clarifies that an owner, contractor, or subcontractor may take offsets for specified appropriate failures of the person submitting the invoice. Sets procedures and time lines.
Authorizes the owner to contract for greater than 30 days, not to exceed 60 days. Sets procedures for notifying contractors and subcontractors of the extension.
Authorizes retaining a portion of the payment to ensure that the work is properly completed, but limits retaining greater than 5% on the first half of the project. Authorizes the subcontractor to request release of the retained fees and requires release within 90 days. Sets standards and time lines for the required release. Clarifies that a release is not a waiver of claims.
Requires monthly payment of actual costs on a change directive. Sets standards for calculating actual costs. Authorizes, if an agreement is not reached within 2 months, either actual cost plus 10% overhead and 5% profit or the termination of work on change directives. Sets standards for suspension of performance under a change directive.
Authorizes a contractor or subcontractor to suspend performance under a construction agreement. Requires a contractor or subcontractor to resume work if the owner pays the amounts due plus the cost of the suspension. Sets standards and time lines for suspension and resumption of performance.
Sets standards for providing notice under the act. Declares agreements in violation of the act void. Prohibits contractual provisions that apply the law of any jurisdiction other than Colorado for real property within the state. Amended and approved by the Business Affairs & Labor Committee and referred to the Appropriations Committee.
12. HB 1307 - Concerning interim assistance for expenses incurred by a person seeking supplemental security income benefits. By Rep. Buescher and Sen. Keller. Clarifies that neither the state department of human services nor any county shall pay any portion of the costs, including legal fees, incurred by a recipient of public assistance in seeking supplemental security income benefits or any other federal benefits. Passed out of the House and Assigned to the Senate Finance Committee.
13. HB 1309 - Concerning continuation of the assessments imposed upon health insurance carriers to fund the CoverColorado program, and, in connection therewith, eliminating the sunset of the assessment and creating a task force to develop a long-term funding plan for the program. By Rep. Mitchell and Sen. Isgar. Sunset Process - House Business Affairs and Labor Committee. Continues the assessments imposed upon health insurance carriers to fund the CoverColorado program (program) and removes the repeal of the assessment. Creates the CoverColorado long-term funding task force to develop a plan, by a specified date, for funding the program in the future. Passed the House on February 22.
14. HB 1310 - Concerning deferred deposit loan transactions. By Rep. Ferrandino and Sen. Groff. Changes the allowable finance charges for an initial deferred deposit loan in a 12-month period to $10 for each $100 loaned, up to a maximum charge of $30. Limits the allowable rate of interest to 36% per annum.
Prohibits a lender from making a deferred deposit loan to a consumer who has an outstanding loan with the lender or any other lender. Requires a lender to verify that a consumer does not have an outstanding loan prior to initiating a new loan by accessing a common database.
Requires the administrator of the "Uniform Consumer Credit Code" (administrator) to contract with an outside vendor to implement a common database with real-time access through an internet connection for lenders. Requires lenders to submit data prior to entering into a loan agreement. Requires lenders to pay a fee to cover the cost of the database. Authorizes the administrator to impose a civil penalty for failure to use the database as required. Amended and approved by the Business Affairs & Labor Committee and Amended and passed on 2nd Reading in the House.
15. HB 1311 - Concerning the creation of a limited health benefit plan to be offered by small employer carriers to certain small employers. By Rep. Swalm and Sen. Johnson. Starting January 1, 2009, requires small employer carriers doing business in the state to offer to small employers that have not offered employer-sponsored health care coverage to their employees or to all classes of their employees within the prior 12 months a limited health benefit plan, as developed by the commissioner of insurance by rule. Establishes 2 limited health benefit plan options, each of which includes an annual cap on the total amount of benefits available to covered persons and caps on the amount of benefits available for specified health care services provided during the plan year. Requires small employer carriers to offer the limited health benefit plan in addition to the standard and basic health benefit plans currently required to be offered to small employers. Requires small employer carriers to clearly disclose to small employers and covered persons the specific limits in benefit amounts under a limited health benefit plan. Assigned to the Business Affairs & Labor Committee.
16. HB 1318 - Concerning mitigation of the effects of the pine beetle infestation. By Rep. Lundberg and Sen. Taylor. Creates a pine beetle mitigation fund for use by the Colorado state forest service to mitigate the effects of pine beetle infestation on state-owned land. Specifies that the fund consist of donations received when the division of wildlife sells a license and other gifts, grants, and donations. Directs the division of wildlife to give every person who buys a license an opportunity to make a donation to the fund. Exempts infested logs and products made from such logs from the state sales and use taxes. Amended and approved by the Agriculture, Livestock, & Natural Resources Committee and Referred the Appropriations Committee.
In the Senate
17. SB 165 - Concerning the creation of an advisory council for persons with disabilities. By Sen. Williams and Rep. M. Carroll. Creates the Colorado advisory council for persons with disabilities ("council") in the department of human services. Outlines the council's membership and duties. Creates the Colorado advisory council for persons with disabilities cash fund. Assigned to the State, Veterans & Military Affairs Committee.
18. SB 169 - Concerning hard rock mining fees. By Sen. Isgar. Establishes permit application and amendment fees for in situ uranium mining analogous to such fees for oil shale. Specifies that such fees are applicable to revisions to permits other than amendments. Adds a permit amendment fee for limited impact mining operations. Assigned to the Agriculture, Natural Resources & Energy Committee.
19. SB 171 - Concerning substance testing of parolees. By Sen. Ward and Rep. Stafford. Revises the chemical testing requirement to which a parolee must submit as a condition of parole from a urine test to a test of a biological substance sample from the parolee. Removes the duties of the department of public health and environment with regard to testing of substances for parolees. Requires the department of corrections and the department of public safety and local governmental agencies for inmates paroled to community corrections to contract with a private laboratory for testing of parolees' biological substances. Assigned to the Judiciary Committee.
20. SB 174 - Concerning a clarification that a summary disclosure form be provided to a health care provider at the time health care contract is presented for consideration. By Sen. Johnson and Rep. McGihon. Clarifies that when a proposed health care contract is presented by a person or entity for consideration by a health care provider, the person or entity shall provide a summary disclosure form to the health care provider at the time the contract is presented. Assigned to the Health and Human Services Committee.
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