2021 Mega Bills – Engage Democracy

These are all of the Mega category bills proposed in the 2021 session. Each bill has its own bill number, please use your browser search feature to find the bill you are interested in. Note that these are across all categories, return to the Colorado home page to pick a specific bill category. All Mega bills also appear on their specific category pages.

None of the text is the opinion of Engage. Each bill's description, arguments for, and arguments against are our best effort at describing what each bill does, arguments for, and arguments against the bill. The long description is hidden by design, you can click on it to expand it if you want to read more detail about the bill. If you believe we are missing something, please contact us with your suggestion. Some of these bills have the notation that they have been sent to the chamber's "kill" committee. This means that the leadership has decided to send the bill to the State committee even though it does not belong there based on its subject matter. This committee, in both chambers, is stacked with members from "safe" districts and the idea is to kill the bill without forcing any less safe members to take a hard vote. It is possible for a bill to survive the kill committee, but it is very rare.

Prime sponsors are given after each bill, with Senate sponsors in () and House sponsors in []. They are color-coded by party.

Some bills will have text highlighted in pink or highlighted in orange or highlighted in yellow. Pink highlights mean House amendments to the original bill; orange mean Senate amendments; yellow highlights mean conference committee amendments. The bill will say under the header if it has been amended.

House

Click on the House bill title to jump to its section:

Senate

Click on the Senate bill title to jump to its section:

HB21-1041 Private Sector Enterprise Protections [Woog (R)]

KILLED BY HOUSE COMMITTEE

Appropriation: None
Fiscal Impact: $2.8 million per year in legal services

Goal:

Prohibit the state government from passing or implementing any law or rule that interferes with the ability for businesses or their customers from using their free will and free choice and take risks in any manner, time, or condition that is acceptable to the parties involved

Description:

Law applies to all individuals and any sort of business entity engaged in selling any sort of product or service for profit. Law specifically says it overrides the state constitution. Bill allows any business to assert a violation of this law in any judicial or administrative proceeding of any kind as a defense.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Licensing and other restrictive regulations opt as enormous barriers in the marketplace
Small businesses are frequently just not equipped to deal with the avalanche of regulations that can be thrown their way, and the cost of keeping in compliance can become higher than a business with not many employees can bear
Personnel responsibility should be more important than government hand-holding. So long as people properly understand the risks of an activity beforehand and it is not illegal, it should be allowed

In Further Detail: Licensing and other restrictive regulations opt as enormous barriers in the marketplace, protecting current players and making it difficult to break in. Cutting hair, doing nails, driving a taxi, the list goes on and on (and there seem to be fresh attempts to add to it all the time). In our zeal to protect ourselves, we have gone too far in the other direction, making far too many professions bow and scrape to the government in order to function at all. We all need to take some more personal responsibility. If all parties involve understand the risks and the activity or product is not illegal, then it should be allowed. Obviously if someone is not informed of the potential risks that is a different story and would not be protected by this law.

Arguments Against:

Bottom Line:

This would destroy the ability to hold any business in the state accountable for nearly anything—gross negligence leading to death would simply be people undertaking a risk. The only thing that might survive is outright lying to people
This would prevent the state from regulating or licensing any industry: medicine, electricians, insurance: all of it would rely on whatever federal regulations exist—and for the most part this stuff is left up to states
You cannot write a law that supersedes the state constitution, that’s now how our government works

In Further Detail: This goes far beyond past efforts to put limits on the ability of the government to regulate businesses for public safety. There is no standard at all really, it is just that any business or consumer should be able to buy or sell anything they want as long as they are willing to undertake the “risk”. If there is no federal regulation or licensing requirement than the state can do nothing to protect people. Just to pull one example out of many, doctors are licensed by the state to practice medicine. Under this bill, if you were willing to take the risk of your car salesman neighbor down the street operating on you in your living room, because for whatever reason you thought he could do it, there would be no way for the state to stop it and potentially no way to really do anything about if after the fact. This would obviously be a disaster for public safety, and it would go far beyond just medicine. Finally, you can’t write a law that supersedes the state constitution. That is not how our government works. If you want to change the constitution you have to change the constitution itself. Any law that contradicts the constitution is unconstitutional and will be struck down.

HB21-1049 Prohibit Discrimination Labor Union Participation [Van Beber (R), Ransom (R)]

KILLED BY HOUSE COMMITTEE

Appropriation: None
Fiscal Impact: Potential loss of federal grant funds for RTD

Goal:

Prohibits an employer from requiring any person to join a union, pay union fees, or assessments to charity or other third-party organization as requirement of employment. Any agreement that violates these provisions is null and void. Excludes federal employees and employers.

Description: Nothing to add

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

All-union employment is unfair to those who don’t want to participate but are forced to in order to get or keep a job
Unions can still do all of their functions, they just won’t be able to force participation
If some people benefit from union work in the form of higher wages or better benefits without paying dues, that sort of thing happens all the time: some people put in a lot of work that benefits others who didn’t lift a finger to help

In Further Detail: So-called all-union employment is unfair to individuals who don’t want to participate, for whatever reason, and are forced to support something they do not believe in. This includes being forced to pay their own money to the union. Unions are still welcome to organize, but just won’t be able to force anyone to participate against his or her will. This won’t kill unions, they can still negotiate with employers for higher wages and benefits and if some people benefit from this without paying dues or joining, that will not be the worst thing in the world. It happens all the time, all over the country. Certain people or groups of people work really hard and spend time and money to advocate for a benefit that will help everyone, even the people who didn’t lift a finger to help.

Arguments Against:

Bottom Line:

Unions work best as all or nothing propositions, otherwise management can simply weed out people who belong to the union over time to get rid of it
Thresholds for unionization are far higher than simple majority rule, and we let simple majority rule force us to do things we don’t like or want to do all the time: like paying taxes and fees
RTD could lose its federal grant funding if this passes

In Further Detail: Unions are all or nothing propositions. The protections, wages, and other benefits that unions negotiate are for all employees, thus all employees need to contribute. In addition, people don’t have to join the union, that gives management a tool to drive a wedge among the employees. In a worst-case scenario, management can favor non-union employees to a degree that drives out union employees and destroys the union. In many ways, unions are similar to numerous forms of taxes and fees: we all vote, then we have to abide by what the decision is (and the threshold for all-union employment is much higher than simple majority rule, the higher of majority of eligible voters or ¾ of those who actually voted). So while something like this sounds nice in theory, in practice it is a killer blow to many unions who fight for their members rights every day. Being in a democracy means abiding by the decisions of the electorate, even when we don’t agree. This also destroys multiple active collective bargaining agreements by rendering them void. RTD may also lose federal grant funding by repealing compulsory union membership.

HB21-1068 Insurance Coverage Mental Health Wellness Exam (Moreno (D)) [Michaelson Jenet (D), Titone (D)]

PASSED

AMENDED: Significant

Appropriation: $26,353
Fiscal Impact: Negligible each year

Goal:

Require an annual mental health wellness exam performed by a qualified mental health care provider of up to 60 minutes to be part of the mandatory health insurance coverage of preventive health care services at no charge to the insured. Coverage must be comparable to annual physical examinations and comply with federal mental health parity laws. State must ask the federal government whether the coverage expansion is considered extra for essential benefits and subject to defrayal from the state. If the government confirms that the state is not required to defray costs, coverage must begin in 2022 for large group plans and 2023 for small group and individual plans

Description:

Examination includes services such as:

Age-appropriate screenings or observations to understand a person’s mental health history, personal history, and mental and cognitive state, and when appropriate, relevant adult input through screenings, interviews, and question
Behavioral health screening
Education and consultation on healthy lifestyle changes
Referrals to ongoing treatment
Mental health services and other supports
Discussion of potential options for medication

State must conduct an actuarial study to determine impact on premiums.
Additional Information:

Qualified mental health care providers include:

Licensed physician with specific board certification or training in psychiatry or other mental or behavioral health care areas
Licensed psychologist, licensed clinical social worker, licensed marriage and family therapist, licensed professional counselor, or licensed addiction counselor
Licensed physician assistant who has training in psychiatry or mental health
Advanced practice nurse with specific training in psychiatric nursing

Auto-Repeal: n/a

Arguments For:

Bottom Line:

This is the same idea as annual physicals: prevention and early identification can lead to better outcomes
What we hear far too often in the aftermath of tragedy is that the survivors didn’t know their relative or child was struggling
Because we treat mental health on a crisis-by-crisis basis, we cannot uncover problems early
This would also attack the stigma associated with mental health by making visits to mental health professionals more routine

In Further Detail: Just as we have annual physicals for preventive medicine, so we should have annual mental health wellness exams for preventive mental health. It’s the same idea: prevention and early identification can lead to better outcomes. Not only for long-term mental health and wellness but also for suicide prevention. Colorado has one of the highest suicide rates in the nation. What we hear far too often from families in the aftermath of tragedy is that they didn’t know their relative or child was struggling or suffering. Because we currently treat mental health on a crisis-by-crisis basis, we cannot uncover problems early, before they become acute. Imagine if we treated physical care in this manner, where you only went to see a doctor if you felt that something was wrong. How much more expensive would treatment be? How many lives would be cut short? Another benefit of this law would be to chip away at the stigma around mental health and asking for help. We think nothing of going to the doctor, even when nothing seems wrong. Imagine a world where mental checkups are commonplace and no one blinks an eye at seeing a mental health professional. The bill also covers the state against unforseen financial requirements from the federal government by asking before implementing. If the federal government says the bill would require the state to pitch in, the bill doesn't get implemented.

Arguments Against:

Bottom Line:

There is no guidance on billing, just a mandate for coverage. There are so many potential services it will be hard for insurers to zero on costs the way they can with physicals—note the bill does not apply to Medicaid
These benefits will get passed on to us in the form of higher premiums, when we already have a crisis in premium costs in many parts of the state

In Further Detail: This bill contains no guidance on billing. Annual physical examinations are fairly well defined and so insurers know what the costs will be that they will be required to cover. Mental health examinations under this bill are so broad that a wide range of potential services costing a wide range of money would all be acceptable as an annual examination. This could lead to vast disparities in what individuals are banking to their insurance, and thus to the rest of us in the form of higher premiums. And we already have a crisis in premium costs in many parts of the state. We simply cannot afford to pile more onto that ledger. And note the bill does not apply to Medicaid, where the state would have to bear the brunt of the costs.

Bottom Line:

The increased costs of providing all of this mental health care will be borne by all of us, in a major way. There is no such thing as a free lunch, and a free mental health exam for every Coloradan (even if not everyone takes insurers) will result in higher premiums as insurers adjust. Let’s keep providing mental health care to those that need it and not allow everyone any sort of mental health exam every year.

Bottom Line:

By excluding Medicaid this leaves way too many people out, particularly people who might have the least ability to pay for mental health services on their own.

HB21-1080 Nonpublic Education And COVID-19 Relief Act [Baisley (R)]

KILLED BY HOUSE COMMITTEE

AMENDED: Minor

Appropriation: None
Fiscal Impact: Accelerating loses in net funds, $25 million next year, then $47 the year after, and in ten years $152 million

Goal:

Create a statewide school tax credit program where the parents of any K-12 age child in the state can get 50% of the average per-pupil money in the state as a tax credit for a child in private school attendance or a $1,000 income tax credit for home schooling the child. Both of those are for full-time enrollment, half-time enrollment cuts the numbers in half, so 25% and $500 respectively. Starting next year, only children who either are too young for school or were enrolled in public school would be eligible

Description:

For private school credits, the precise amount is the lesser of 50% of per-pupil revenue or the actual amount of tuition at the school. Tax credits can be rolled over for three years but are not refundable (in other words you can’t go past $0 owed in taxes and have the state pay you money to make up the difference). Taxpayers can transfer unused credit to other taxpayers, including businesses. Pass-through businesses (where taxes are passed through to the actual owners individual taxes) can allocate the credit among its owners.

Additional Information:

Private schools are responsible for issuing the tax credit certificate to families. They must provide the state with a report each year of all credits issued, which includes the name of the taxpayer and state tax id or social security number. If the credit is associated with a pass-through business, all of the associated names and identifying numbers are required.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

This provides parents with more choices for educating their children if they feel their assigned public school is inadequate
This benefits low-income families who cannot afford private education and opens the same opportunities to them as to wealthier families
Estimates of future behavior are tough, but it is important to point out that the state does not have to pay to school any child who is either home-schooled or in private school and neither does the local district so the total money saved is going to be higher than the flat impact on state finances. The net overall picture in the entire state will be money saved
The constitutional question around religious schools getting this funding is basically settled

In Further Detail: When we allow families to make the decisions that are best for them, we maximize the ability for all students to receive the educational experience that works best for that student. Sometimes what is best for a child is not to attend their local public school. The point of free K-12 education is to provide every child with K-12 education, not to dictate where they receive it. We all know that public schools can vary wildly in quality and also in terms of specific programs. This bill also levels the playing field for low-income families who unless they can obtain a scholarship have no ability to access private education the way wealthy families do. That also increases the diversity in those private institutions, which benefits all that attend. On the finances, this is not a voucher program—we are not taking state education money and giving it to families to attend private school. The tax credits are not the entire cost of educating the child in a public school setting, so by definition the state as a whole will gain money from this bill. Now because public school financing is split between state and local governments and because the state government bears the brunt of all of the lost revenue, this is not captured by the fiscal note. But local governments will come out ahead under this plan. For constitutionality, the state supreme court had to backtrack a bit from their ruling a decade ago on school vouchers after the US supreme court ruled in favor of a religious pre-school in Missouri that raised similar issues of church/state separation (the thing became moot because Douglas County dropped the idea entirely so the state court never issued a definitive ruling). And then the US Supreme Court essentially destroyed the entire premise of this church/state separation argument in 2020 in Espinoza v. Montana. So long as the state is not favoring any specific religion and the choice was made freely by families, programs like this bill are allowed.

Arguments Against:

Bottom Line:

We should not be using state money to send kids to private school or to homeschool them: we give every child in the state a free K-12 education paid for by our tax dollars in public systems where we can hold everyone involved accountable
Every kid in the state who is school-age will be eligible for this program next year: every single kid who is already homeschooled or in private school can simply grab this handout and the bill ensures that all tax credits will be used by allowing them to be given to anyone else if the parents cannot or don’t want to use them—and the credits can also be sold
Despite the concern about wealthy versus poor parents, there is no attempt to means-test this program
This will cost us state money, regardless of what happens at the local level. That will have to come from somewhere in the state budget

In Further Detail: We provide a free K-12 education for all children in the state and that is paid for with our taxpayer dollars, in exchange for which we have the ability to write the rules of the road for these schools and hold them accountable for breaking them. If people do not want to take advantage of this free system, the law allows them to do so. But we don’t have to pay them to do it. It is telling that the last major effort by a school district to provide a similar program (in that case vouchers) led to the electoral defeat of the school board and a new regime that reversed the attempted policy. There is no means-testing to ensure that we aren’t propping up wealthy families who don’t need this, and most dammingly, there is no attempt to require that home-schooling or private schooling was done due to COVID, as the bill title suggests is the point of allowing anyone currently enrolled in private school or homeschooled to use the program. It is instead a one-time free pass for any child in the state. The tax credit structure here is also problematic: why do businesses need to be able to buy up these credits? And the bottom line is that this will cost the state money. Not considering the whole, but the actual state government. We don’t do cross-government budgeting, so the lost revenue, over $100 million a year in ten years, will have to come out of some other program. It may end up being K-12 education, which will affect the state school districts uniformly, rather than just the ones who have extra funds due to fewer pupils.

HB21-1086 Voter Proof Of Citizenship Requirement [Luck (R)]

KILLED BY HOUSE COMMITTEE

Appropriation: None
Fiscal Impact: $552,000 in increased fees for one year to cover state costs, unknown increased costs for counties

Goal:

Require all registered voters to prove citizenship via either a valid passport, birth certificate, or naturalization papers. To receive a regular mail ballot you must provide one of these proofs in person at your county clerk’s office. Those who have not proven their citizenship receive a provisional ballot and are not allowed to mail the ballot back (or use a drop box). They must deliver it in-person with their proof of citizenship documentation. In-person voters must prove citizenship before being allowed to vote. Once citizenship is proven, it is recorded in the state’s database and does not have to be done again in subsequent elections

Description:

As with other provisional ballots, someone who submits one without proof of citizenship is to be contacted by the county clerk and has three days to provide proof of citizenship or their ballot will not count. This applies to in-person ballots. Provisional ballots that are mailed or dropped off are automatically disqualified.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

It is federal and state law that you must be a citizen of the United States in order to vote in an election. So we should be ensuring this via something more secure than our current voter registration system requires
People who are missing their birth certificate can obtain a copy. That process might not always be easy, but it will only have to be done once. When citizenship is proven, the voter does not have to do it again in the future

In Further Detail: You must be a citizen of the United States in order to vote in this country. So we should be ensuring that no one is allowed to vote who has not proved they are a citizen. The only way to really be sure is documentation that relies on a birth certificate or naturalization papers. If someone doesn’t have their birth certificate, there is always a process to get a copy. Once citizenship is proven, the voter is done and never has to do it again. The costs to county clerks will likely drop as most citizens go through the process.

Arguments Against:

Bottom Line:

This is voter ID on steroids and will make it extraordinarily difficult for many Coloradans to vote. We already have one of the best and most secure election systems in the country
Voting by non-citizens is extremely rare, advocates of laws like this one have never been able to find anything more than tiny amounts of it occurring
Similar laws have already been found unconstitutional by federal courts

In Further Detail: This is voter ID on steroids. The impact of forcing every Coloradan to register in-person, and to only allow passports, birth certificates, and naturalization papers as proof of citizenship will erect enormous barriers to large swaths of the state participating in our democracy. There are many citizens of the United States who might have a hard time getting their hands on their birth certificate and have never traveled or gotten a passport. It can be actually quite hard to get your birth certificate, there are entire non-profit organizations structured around helping people do this. Plus you are requiring them to come in person to prove citizenship, another barrier to overcome. And for what? There is no problem with non-citizens voting in Colorado. The bottom line is that Colorado runs perhaps the most secure elections in the entire country (0.0027% of ballots cast in 2018 were referred for investigation and conservative groups have found only 9 instances of vote fraud since we adopted the system in 2013). We are the gold standard for other states to emulate. and it is extremely secure. There was a big push by the Republican secretary of state in 2011 to find all of the people he was sure were illegally voting because they weren’t citizens. He found 35, or 0.001% of the state’s registered voters. And even that list of 35 was disputed as error-ridden. This will also saddle our counties with large extra costs every election in order to have the staffing required to process citizenship. Similar laws have been found unconstitutional by federal courts, most recently as last year by the 10^th circuit court—which also oversees Colorado.

HB21-1098 Civil Liability For Extreme Risk Protection Orders [Woog (R)]

NOTE: This bill is no longer a Mega bill, but is kept here for posterity's sake

KILLED BY HOUSE COMMITTEE

AMENDED: Very Significant (category change)

Appropriation: None
Fiscal Impact: Negligible each year

Goal:

Allow anyone who has their gun taken away due to the state’s extreme risk protection order laws and then cannot defend themselves or their family with their gun and suffers injury or damages as a result to sue anyone involved with the bill that brought extreme risk protection orders in law, house bill 19-1177 the person or people who filed the extreme risk protection order petition. Victory in court results in all reasonable damages to compensate the victim or damages of at least $100,000 and up to $100,000,000 if death or disability occurs reasonable court and attorney fees and $5,000 in damages

Description:

Reasonable damages include physical, psychological, or emotional injuries. Anyone who drafted, proposed, promoted, or provided support, financial, or otherwise, to pass, implement, or enforce HB1177 is liable.

HB19-1177 allows for a family or household member or law enforcement officer to petition a court for a temporary extreme risk protection order that would remove firearms from an individual for 364 days or until the individual can prove to the court they are no longer a risk.

The petitioner must establish by the preponderance of the evidence that an individual poses a significant risk to self or others by having a firearm or by getting a firearm. The individual in question has access to an attorney at the state’s expense, not a public defender but someone from a pool of private attorneys who have agreed to participate. The court must hold the hearing in person or by telephone the day the petition is filed or the next court day. If a temporary protection order is granted, another hearing must be held within 14 days to determine if the order should be continued. A continued order is in effect for 364 days. The individual under the order can petition once during the 364 days to have it removed, here the burden is on the individual under the order to prove they are no longer a risk, but there is discretion left to the judge to order future hearings if the judge thinks there is a strong possibility the order could no longer be necessary before it expires. The petitioner can request the order be extended before it expires. Upon expiration or lifting of the order, all of the individual’s firearms must be returned.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

If someone is deprived of their firearm without committing any crime and then is injured or killed without the opportunity to defend themselves, the people who made it so the gun could be taken away should be held accountable. That should deter anyone from making a frivilous extreme protection risk filing

Arguments Against:

Bottom Line:

This is an attack on our legislative process: if you don’t like a law you work to change it or challenge it in court, you don’t try to sue the people who pushed, advocated, or voted for a bill to passed and certainly not the people who are enforcing the laws as written—not in America
So-called red flag laws are about saving lives and are in place all over the country. There is a strong judicial review process involved. Making people liable in situations where guns are taken away may have a chilling effect on the intended purpose of the law

In Further Detail: This is not how our system of laws works. Laws on the books are to be enforced, and people in law enforcement, the judiciary, and the executive branch must enforce them. People who propose laws are also not to be pursued and punished if the law is passed and faithfully executed. If you don’t like a law, you have to go through the legislative process to change it. If you think a law is unconstitutional, you have to go to the courts for remedy. And these extreme protection risk laws, so-called red flag laws, exist across the country and have not been overturned by the court system for being unconstitutional. If that happens, then the red flag law in the state will be struck down. If someone wants to remove extreme protection risk order laws from our system, then the proper avenue to pursue is legislation to do so or a court challenge to the validity of the law. We don’t punish people here for having ideas and trying to make them law, even if we think they are misguided and apt to cause more harm than they prevent. Oh, and since it probably should be said, this is about saving lives. We’ve all asked, in the aftermath of the Parkland shooting and many others, why no one stepped in when it seemed so obvious that there was such clear danger. The unfortunate answer is, it wouldn’t have mattered without something like extreme risk protection orders. If Nicholas Cruz lived in Colorado and people were concerned he would become violent with his firearms, it was not possible to take them away from him, by any avenue, until after he commits a crime. Here in Colorado deputy Zackari Parrish, was killed by a mentally unstable man that the local authorities knew was unstable and armed. And then there are the numerous successful suicides by gun, which may have not been successful with alternatives like pills. Deputy Parrish, and many others, might still be alive today if when people see something and say something, we can actually do something about it. This was a bipartisan bill supported by numerous state sheriffs. It contains numerous safeguards for the rights of the accused individual and relies on a judge to administer the final ruling. We should not chill the potential uses of this law by making people liable, even if it was completely proper the guns were taken away.

HB21-1111 Consent Collection Personal Information (Bridges (D), Gonzales (D)) [McKean (R)]

PASSED

AMENDED: Very Significant (category change, this is no longer a Mega bill but kept here for posterity)

Appropriation: None
Fiscal Impact: Not yet released for amended bill

Goal:

Require any governmental entity that has certain personal information about a state resident to notify them the state has this information every 90 days by either physical mail, telephone, or e-mail. The notice must include the information the state has and an option for the resident to assent to the state keeping the information or ask that it be destroyed. Destruction must be done 30 days after the request. Law enforcement may delay the notice if it is pertinent to an ongoing criminal investigation Study how personal identifying information held by the state is stored to see what costs and procedures would be necessary to centralize the storage and protection of data

Description:

Requires the chief technology officer to convene an advisory group next year to study where personally identifying information held by the government is stored by state agencies and the costs and processes necessary to centralize the storage and protection of the data. Advisory group must include members of the government data advisory board and someone from the attorney general's office. Rest are up to the CTO. Report due by January 2023.

Personal information includes medical information, social security or identification number, date of birth, place of birth, government issued license number, vehicle registration information, license plate number, photograph, fingerprint, uniquely identifying physical feature, financial transaction device, student identification number, school attended, financail and tax records, home or work address, status as recepient of public assistance or victim of a crime, race, ethnicity, gender, immigration status, disability status, religion, username or e-mail address in combination with a password that permits access to an online account, account number or credit card or debit card number in combination with a security code, access, code, or password that gives access to the account, IP address, or geolocation data.

Additional Information: n/a

Auto-Repeal: January 2024

Arguments For:

Bottom Line:

None of this information is need by the majority of state agencies and the bill carves out an exception for law enforcement
Our personal medical information and geolocation data should not be sitting in state databases ripe to be hacked so it makes sense to study if it is feasible to create a central, well-defended, database
The fiscal note is assuming a heavy reliance on mail notification, which may not be the case and would drastically reduce the costs

Arguments Against:

Bottom Line:

First, the state must keep some of this information by state and federal law. How is the Medicaid program, to pull just one example, supposed to operate without any medical information? Law enforcement is supposed to baby sit its data to ensure it doesn’t get accidentally erased? Medical information is so broadly drawn here that your driver’s license application may contain some This is still likely to be a waste of money as such as system is likely to be far too costly to be workable. You have to design alll sorts of data access requirements into the system and then what happens if one agency needs to change something? Not to mention that a centralized target containing everything is a very juicy target and may prove extremely difficult to defend
Second, even if we are generous and say the fiscal note is too high, we don’t need to spend a million dollars on a program like this, much less hundreds of millions of dollars or billions of dollars a year

HB21-1117 Local Government Authority Promote Affordable Housing Units (Gonzales (D), Rodriguez (D)) [Lontine (D), Gonzales-Gutierrez (D)]

SIGNED INTO LAW

AMENDED: Moderate

Appropriation: None
Fiscal Impact: None

Goal:

Allows local governments to apply land use restrictions that restrict rent to new or reconstructed developments as long as the regulation provides a choice of options to the property owner or land developer and creates one or more alternatives to the construction of new affordable housing units on the building site.

Description:

In 2000 the state supreme court held in Town of Telluride, Colorado v. Lot Thirty-Four 5 Venture LLC that local ordinances forcing developers to include low-cost housing units in new developments is a form of rent control. Rent control is illegal under state law.

No local community can do this unless they demonstrate commitment to affordable housing by doing one of the following:

Adopt changes to zoning and land use policies that are intended to increase density, including increasing number of housing units per site, promoting mixed-use zoning, permitting more than one dwelling unit on single-family lots, increasing permitted household size in single family homes, promoting denser development near transit stations and places of employment, granting density bonuses to projects that incorporate affordable housing, granting reduced parking requirements to housing near transit or affordable housing units, and adopt policies to promote diversity of housing mix options
Materially reduce or eliminate utility charges, regulatory fees, or taxes applicable to affordable housing units
Grant affordable housing developments relief from zoning or other land development restrictions that would ordinarily limit density
Make surplus government owned property available for housing development
Adopt any other regulatory measure expressly designed and intended to increase housing supply

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We have an affordable housing crisis in the state and need to give local governments all of the tools they want to get more affordable housing built in their jurisdictions instead of displacing people into outlying communities which creates cascading housing problems and increases traffic
This is not full-blown rent control—it is just about building more affordable housing. Because if you build the wrong types of supply, you don’t end up lowering demand and bringing prices down—you just end up with empty high-price housing units like New York
Developers still get a choice, including one option of no affordable housing
The bill ensures communities are serious about a commitment to sustainable housing policies

In Further Detail: The 2000 case tied the hands of cities that are desperately trying to force developers to build more affordable housing by requiring a certain amount be set aside for affordable housing. And we desperately need more affordable options. 50% of Colorado rentals statewide are cost-burdened, spending more than 30% of income on housing. Independent analysis shows that we are facing a deficit of over 20,000 housing units until at least 2025 and one analysis estimated a shortage of 100,000 rental units for those with low-income. We just saw a record $55 million in rent assistance requests to the state in the last month, more than in all of 2020. This explosion of need is of course somewhat geographical, which is why we need to give local communities the ability, through their own elected officials, to enact affordable construction requirements. The inability to do so has displaced renters from Denver and other large communities into surrounding smaller communities, which are ill-equipped to deal with the influx, which of course makes their housing costs rise as well. In addition, too many renters in the state cannot live near their work, which adds to our punishing traffic and contributes to our brown cloud. These sorts of agreements, called inclusionary zoning, are not novel. Neither is rent control, which has been around for nearly 100 years in New York. Ironically it is also New York that demonstrates the flaw in the supply and demand argument (that our only problem is we don’t have enough housing, so build more housing of any type). New York now has a glut of empty high-end units because these were overbuilt. That of course has not solved the housing problem because people are not living in them and they were not constructed to support lower rents. So instead of the promised supply lowering prices, we just have empty units taking up space. In this bill developers still must get some options, including at least one alternative of no affordable unit construction, so this will not be full-blown rent control and construction mandates pushed down developer’s throats. It will be flexible enough to allow cities to make their own determinations about what is best for their community. The bill also ensures that no community can enact these controls without proof of a serious commitment to sustainable affordable housing practices.

Arguments Against:

Bottom Line:

The only way to guarantee rents stay low is some form of rent control and rent control just doesn’t work—economists from all political persuasions agree it actually leads to less housing being created
Rent control also makes it difficult for a population to be mobile—it’s hard to move when you risk leaving your rent controlled apartment—and may cause landlords to use unsavory factors when determining who gets an apartment
The problem with our housing market is supply and demand, increase the supply and we will lower demand (and rents). It may not be instant, overbuilding luxury apartments won’t overnight affect lower-income rentals but developers will not want those luxury apartments to sit empty and will act to fix the problem

In Further Detail: This bill will allow rent control in some circumstances (the way to guarantee that housing stays affordable) so it is worth discussing how effective rent control is. Rent controls fly in the face of our capitalist system. Apartments that are rent controlled may incentivize owners to not maintain their property and there is a vast collection of literature from economists of all stripes, 93% of a 1992 poll of the American Economic Association, and in later times, including noted liberal Paul Krugman, that rent control does not work and in fact leads to less housing being created (that’s what happens when you remove the profit motive), in fact can raise prices in non-rent controlled areas, and can increase urban blight. Look at New York and San Francisco, how is rent control working out for them? They remain the two most expensive housing areas in the country. Rent controls also make it extremely difficult for the population to be mobile: if you live in a rent controlled apartment you may not be able to give it up to move elsewhere in the city because you cannot get into another rent controlled apartment. So the long-range commute solutions may not last very long. Finally rent controlled apartments encourage unsavory factors being used to determine who gets the rental. Rather than pure money, landlords may rely on factors such as appearance, children, and other potentially more insidious factors such as race or sexual orientation. What we have in our housing market is a simple supply and demand problem. There are far too few housing options in many parts of the state and far too many people who want to live there. Fix the supply, in part by building more multi-unit complexes vertically into the available space in the sky rather than one-family homes, and you will fix the pricing problem. It may not happen instantly, as the market does need to sort itself out at times, so for instance in New York no developer is going to sit on vast numbers of vacant units without doing something to fix the problem, but over time it will improve our housing market. There is also a way to force developers to build housing units at a certain value point as part of a project but not restrict the rent they can charge. This avoids the potential future problems of rent control while also avoiding the problem of developers building too many luxury units.

Bottom Line:

Allowing any sort of menu of choices may give developers an out to avoid building affordable housing
We have the power to change the law and allow full-blown forced affordable housing with rent control as part of construction

In Further Detail: The menu of options portion of this bill may in fact end up being the “out” for developers to avoid building affordable housing at all. Because of the tenuous current legal situation, the few cities that are attempting some form of inclusionary zoning have tended to make it voluntary with options developers can meet instead of building affordable housing (like paying a fee). The result has been developers overwhelmingly paying the fee instead of building the housing. So whatever the alternative is, and the bill does not really define what cities are allowed to do here, if it includes build what you want anyway but pay some sort of fee, that is what developers are going to do. The state supreme court made it clear that the legislature has the power to change this section and allow full-blown forced affordable housing as part of construction. We should do that and ditch the menu.

HB21-1162 Management Of Plastic Products (Gonzales (D), Garcia (D)) [A. Valdez (D), Cutter (D)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: About $50,000 a year to the state, unknown larger amount to school districts (up to $5 million)

Goal:

Ban stores and restaurants from providing single-use plastic carry-out bags (with some exceptions, see Additional Information) and expanded polystyrene food service products to customers at point of sale after September 2022 January 2024 for plastic bags and January 2022 for polystyrene containers. Plastic bag inventory purchased prior to September 2022 January 2024 can be used before April 2023 June 2024 but the customer must be charged at least $0.10 per bag (see below for more detail). Polystyrene inventory purchased before January 2022 2024 can be used until depleted. Stores with three or fewer locations that operate exclusively in Colorado and are not part of a larger chain are excluded
Stores must charge customers at least $0.10 per bag if they provide recyclable paper bags instead and must charge the same fee for single-use plastic bags until September 2022. 60% of money goes to city or county store is located in, store keeps 40%
Lifts the ban on local governments from enacting their own plastics requirements or bans on in July 2023 so long as they are not less strict than state law Lifts the ban on local governments from enacting their own plastics requirements or bans on in July 2024 so long as they are not less strict than state law

Description:

Stores cannot refund the bag fee to customers in any way but customers who can prove they are in federal or state food assistance programs are exempt. Store must notify customers on receipt of number of bags charged and must have prominent signs indicating the bag fee.

Schools do not have to comply with the polystyrene ban until 2023 2024 if it is anything other than a high school and 2024 2025 for high schools. Farmer's markets and roadside markets are excluded entirely.

Cities and counties (for unincorporated areas) can fine up to $500 for a second violation and $1,000 for third or subsequent violations. There are no state-level punishments in the bill.

Additional Information:

Bags used to contain prescription medicine at pharmacies, to package loose items together at a grocery store (like fruit or vegetables), or contain or wrap frozen foods or bakery goods or prepared foods to prevent contamination of other items or to hold small hardware parts are not included. Also does not include laundry, dry cleaning, or garment bags. Expanded polystyrene is defined as: blown polystyrene, commonly known as Styrofoam, and any other expanded or extruded foam consisting of thermoplastic petrochemical materials utilizing a styrene monomer and processed by techniques that may include: fusion of polymer spheres, injection molding, foam molding, and extrusion-blow molding.

Restaurants that prepare or serve food in individual portions for immediate on or off premises consumption do not have to comply withe the bag ban.

Reusable carryout bag is defined as a bag that is designed and manufactured for at least 125 uses, can carry at least 22 pounds over 175 feet, has stitched handles, and is made of cloth, fiber, or other fabric or a recycled material such as polyethylene terephthalate. Does not include bags made of biologically based polymers such as corn or other plant sources except for hemp

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Plastics don’t biodegrade, they instead cause massive trash problems in our oceans and eventually get into animals and our food chain
People simply don’t recycle plastic bags and polystyrene food containers are generally unrecyclable
Places all over the world are enacting similar bans because we have ready alternatives
The bag fee will encourage people to get reusable bags and other cities that have similar fees see enormous amounts of decreased litter
Statewide action makes it easier for companies to navigate—and many of them already have to deal with similar laws in other locations

In Further Detail: Plastics do not biodegrade, they instead photodegrade into smaller and smaller pieces that eventually get into animals and then into our food chain. People simply don’t recycle plastic bags (the estimate from Waste Management is 1% of all bags). And it is estimated that in America we use over 100 billion plastic bags every year. Polystyrene food containers are generally unrecyclable because recycling companies won’t buy it. Forced recycling won’t help here, as already mentioned we have enough trouble getting items than can be recycled properly disposed of. So billions of these end up in landfills and it is not known how long they will take to degrade, but it is going to be a very long time and like a lot of our trash, it ends up in our oceans and hurts natural wildlife. There is also a danger of chemicals leeching into foods at higher temperatures and with certain foods. We are facing some truly scary ocean pollution risks when it comes to plastic, in terms of overall pollution and corruption of the food chain. New York is banning plastic bags and California already has. Hundreds of municipalities around the country have banned polystyrene containers. Entire countries have banned bags and containers, including polystyrene bans in India and China. We have replacements for all of these things, mostly multi-use bags made from other materials, biodegradable paper, and compostable plastics. The $0.10 bag charge should encourage customers to just obtain their own reusable bags. This can not only lead to large decreases in using store bags but also in litter. San Jose found decreases in litter of about 60% in waterways and streets after a nearly identical law change. Research on other similar bag fees around the country confirms that this happens. The honest answer about how much of the trash in our oceans comes what source is we don’t know. Lots of trash sinks to the ocean floor and thus cannot be counted and smaller items become unrecognizable more quickly than larger ones. Our plastic problem is urgent, a true emergency, so we also cannot wait for societal pressures and trends to sort this out over a longer time-frame. Statewide action also makes it easier for businesses to navigate, as they do not have to sort through local regulations. This is something we can do, with ready alternatives, which much of the rest of the world is also doing, and will help the problem.

Arguments Against:

Bottom Line:

The vast majority of the plastic waste in our oceans comes from different sources
You can already recycle plastic bags and if the issue with polystyrene is recycling companies won’t accept them, maybe that is where state is action is needed
Polystyrene is cheaper, so increased costs will likely get passed on to customers, and can retain the heat of the food for longer
Except of course for schools, which cannot pass on increased costs and have to eat them instead. This will almost certainly costs our schools millions around the state each year, at least initially
Allowing local government to enact even more strict laws could create a patchwork of rules for businesses to navigate

In Further Detail: It is believed the single greatest contributor of plastic to our oceans is fishing gear. Eight million tons of plastic flows into the ocean each year it is believed plastic bags account for much less than 1%, in part because of their size. This just isn’t going to do much to fix the problem of plastic pollution in our oceans and will instead inconvenience Coloradans who don’t want to drag their own bags everywhere. And we do have plastic bag recycling, you can drop them off at many King Soopers for instance. So rather than an outright ban and bag tax, let’s explore less confrontational ways to get people to be responsible consumers. For polystyrene, restaurants use these because they cost less than alternative products and because the material can retain the heat of the food for longer. The increased costs from alternatives are likely to be passed on to consumers. Except for schools (and prisons), which cannot pass these costs on and so have to eat the increase. The estimate from the fiscal note is that we are looking at millions each year across the state, up to $5 million potentially, in added costs. Sure that may come down over time through lowered costs for alternatives as more and more people use them, and the implementation for schools is out in the future so hopefully it does by then, but if not, this is a lot of money. If the issue is that this material is recyclable but that the process is too costly for recycling companies, perhaps that is where the state should step in, rather than on the restaurant/consumer side of things. Opening up local government to enact even stricter laws creates the exact patchwork of regulations that Arguments For touts as a reason for statewide action.

Bottom Line:

There are now no punishments in the bill at all for ignoring this law, which goes too far. Yes we want to work with folks to make this work but at some point you have to be able to punish people for willfully violating the law

HB21-1164 Total Program Mill Levy Tax Credit (Zenzinger (D), Fenberg (D)) [Esgar (D), Garnett (D)]

SIGNED INTO LAW

AMENDED: Moderate

Appropriation: None
Fiscal Impact: Eventual potential decrease in state education spending once negative factor is paid off

Goal:

Phase-out tax credits over 19 years that a bill last year created which are a substitute for excess state funding paid to school districts who have reduced their property taxes. This will cause the property taxes in these district to rise until they meet the minimum amount required by last year’s bill (27 mills or enough to fund the district). The phase-out is a maximum of one mill per year. Conversely it will lower the amount the state is required to pay our schools from the general fund to backfill shortages. There are four districts in the state that are not affected by this bill (see Description)

Description:

This is super complicated, but we’ll try to break it down. The core of this is what is called “mills”, which are the amount the local government taxes for schools via property tax rates. A mill is $1 for every $1,000 of taxable value. More mills=higher taxes and more money for schools. Since the advent of TABOR, where the government has to give back excess revenue and voter approval is required to increase taxes, many school districts have decreased their mills after voters have allowed them to keep excess revenue for schools (in fact 174 of the state’s 178 school districts allow this, which is also a part of TABOR), and others have decreased their mills to avoid keeping any excess revenue as required by TABOR. Essentially TABOR said that if you were bringing in too much property tax revenue, you had to lower your property tax rate. This was all compounded by the state determining that even if the school district had decided it could keep excess revenue, TABOR still required the rate to go down. The state is required to backfill any shortage in education revenue through the budget, so any districts that are short will be made whole by the state (this is a constitutional requirement). This got to the point where the state froze decreases in 2007. A bill passed last year overrode all of these individual levies and essentially said all of these property tax drops were mistakes by the districts that have voted to keep excess revenue for education. They should not have been forced and we are going to undo them. That means the four districts that have not done this are not affected by this bill (Cherry Creek, D-11 in Colorado Springs, Harrison, and Steamboat Springs). So you had to set your levy at either 27 or whatever the minimum is to fund your district. But the bill also said the state will pay you tax credits to cover the difference, so the bill last year made no change in actual funding. This bill will take those credits away, over the span of 19 years, which will have the effect of forcing those property taxes to rise to meet the mill requirement.

There are 47 districts in the state already at 27 mills or high enough mills to fund the district and they will be unaffected by this change. There are 17 districts where the change requires less than 1 mill and so will be complete next year. Of the remaining 110, all will see an increase of 1 mill next year. For a few that will be enough but most will continue into future years. The raise in property tax revenue will be $91.5 million next year and $145 million the year after that. It is believed that at full implementation the total amount of property tax increase would be in the neighborhood of $350-$450 million. The state would not be required to spend the mirror amount of savings in general fund money on education (though it could). Bill requires the state to continue spending any money saved until the "negative factor" (money the state owes schools for past failures to pay amount constitutionally required) is paid off.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We have gone from local districts paying for 2/3 of the costs of K-12 education and the state 1/3 to the complete inverse, except it has not been done evenly across the board: some districts still pay the majority of the costs while others pay as low as around 10% with bare-bones property tax rates—while the income taxes of all Coloradans are distributed in a reverse unequal manner to shore up the freeloading districts
This increasing burden just can’t be borne by our state budget—we continue to not be able to meet our obligations to our schools and we are leaving other critical areas unfunded
This will meet constitutional muster—these districts decided they wanted in the past to keep excess revenue but weren’t allowed to

In Further Detail: This is a complex problem that is decades in the making. Before TABOR, in 1991, all school districts in the state were either at 40 mills or what was required to fully fund the district. Local districts paid for about 67% of the costs of their districts and the state paid for the rest. TABOR made it impossible to take in that much revenue, so property taxes were slashed everywhere. Some districts are now near 0 (rates were frozen in 2007 by the state). The state now provides 61% of education funding, an amount that continues to grow over time and has become completely untenable (as the negative factor, the money the state owes school districts proves) in regards to the rest of the budget. In practice we also now have vastly different funding mechanisms all over the state, with some places spending more on their schools and some places not, and therefore relying much more heavily on the state to fill in the difference. In essence, large parts of this state are subsidizing the low-tax decisions of a few places since we have to use our state income tax revenues to shore up the freeloading districts. Legally, the bill is set-up to in essence say past forced decreases were an error based on misreading of TABOR. Most experts believe this will hold up. It is unfortunate we cannot force the remaining four districts to also comply, but TABOR remains the law of the land and these districts have not approved keeping excess revenue for schools. The bill will also force the state to keep spending the same amount of money until it pays down the negative factor completely.

Arguments Against:

Bottom Line:

It not clear that this can survive the inevitable court challenge and even if it does, it violates the spirit of TABOR
Coloradans have made it clear: voters want to approve any tax increases. What this bill does is provide an end-around, raising property taxes without asking the voters for approval
We need to do a better job of using the funds we give our schools and attack the basic formula of how we distribute money before we start hiking property taxes

In Further Detail: Obviously this is going to be settled in court, there is no way that every taxing district in the state will take an increase with a lawsuit. And it is not at all clear that clever winking and nodding will be enough to get around the fact that this bill raises property taxes without asking the voters first. Even if the bill does escape on a technicality, it is a clear violation of the spirit of TABOR. Voters have made it clear, repeatedly, that they want to approve any tax increases. And before we reach for the tax increase button, let’s first do better with the money we have: less on administration on more on things to do with direct contact with kids. We also have an acknowledged issue with the formula used to distribute the funds amongst districts, at least among most districts in the state. Wealthier districts get higher funding levels due to cost of living and that factor is more heavily weighted than number of low-income students. Fix these basic errors first, and then we can see if we have more sustainable school funding or need further adjustments.

Bottom Line:

It leaves a rather large hole to let Cherry Creek, D-11 in Colorado Springs, Harrison, and Steamboat Springs off the hook here. Cherry Creek has the third highest state share of in the state (in total dollars, not percentage). Because they are at 18.756 mills instead of 27, we are losing about $57 million each year to fill-in their lower property taxes. And this in the 10^th wealthiest school district in the state. Given all of that, it might be one of the biggest freeloaders we have. Surely we can think of some clever mechanisms to require these districts to get with the program or lose their state backup

HB21-1191 Prohibit Discrimination COVID-19 Vaccine Status [Ransom (R), Van Beber (R)]

KILLED BY BILL SPONSORS

AMENDED: Moderate

Appropriation: None
Fiscal Impact: Negligible each year

Goal:

Prohibit employers from taking any adverse actions against an employee based on if the employee has received a COVID-19 vaccine. Bans the state from requiring a COVID-19 vaccine and from requiring children to obtain one. Prohibits the state or any business or service provider from discriminating against a client, patron, or customer based on if they have received a COVID-19 vaccine. Prohibits health insurers from using COVID-19 vaccination status in any decision making on coverage or premiums
Prohibits health facilities to require COVID-19 vaccination as a condition of employment or take any adverse action against an employee based on if they have received the vaccine. State is prohibited from requiring facilities to ensure their employees receive a vaccine.

Description:

Anyone who violates these provisions may be sued in civil court for injunctive relief, affirmative relief including back pay and lost benefits with interest up to 10%, and any other equitable relief that may be appropriate. Courts may also order payment of attorney fees and punitive damages if it is demonstrated by clear and convincing evidence that the employer acted with malice or willful or wanton misconduct or this is a second or subsequent violation by the employer.

Adverse action means: refusing to hire, firing, refusing to promote, demoting, harassing, or discriminating in terms of compensation, terms, conditions, or privileges of employment.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

No one disputes that there are risk to vaccines, including in some cases, although quite rare, death or severe disability
The federal program for tracking vaccine injuries has taken in 15,923 adverse case reports as of February 21^st. This includes 923 deaths, although it is not possible to know at this time if the vaccine caused the death (we just know the person was recently vaccinated)
The COVID vaccine is brand new and relies on new vaccine technology so it is impossible to yet know potential long-term effects or different reactions to the vaccine based on race, pregnancy, or other medications
We have long held in Colorado that people have the right to make their own health care decisions and consent to treatment is a universal tenet of our health care system. Yet right now someone can be fired for refusing to get the COVID vaccine. This bill fixes this by ensuring all Coloradans can choose not to get the vaccine without fear of being punished by the state or by an employer. If the vaccine is in fact nearly completely effective at preventing death from the virus, then the non-vaccinated would not be endangering the lives of anyone but themselves

In Further Detail: Even pro-vaccine people admit that there are risks to vaccines. There is no risk of getting autism from a vaccine but there are other risks including bad reactions to the vaccine and in some cases, although quite rare, death or severe disability. Doctors themselves admit they cannot with 100% accuracy predict who will be harmed by vaccination. There is no liability for medical professionals administering them and extremely limited liability for pharmaceutical companies. There is a federal vaccine injury compensation program which takes on the liability for vaccines from pharmaceutical companies and it awards hundreds of millions of dollars a year in vaccine-related injury claims and more than $4.2 billion in claims over its lifetime. There is also an associated reporting system, which got about 30,000 complaints annually from across the country before COVID. For COVID itself as of February 21^st it had received 15,923 adverse reaction reports including 1,869 reports of hospitalization and 923 cases where the person who received the vaccine died shortly thereafter (it is not possible at this point to definitely link the hospitalization or the deaths to the vaccine itself). It is also possible that this represents under-reporting of more mild injuries from vaccines, as not everyone is aware of the program. We also know that the COVID vaccines are extremely new and rely on different methods than most vaccines. It would be impossible to know the long-term potential effects from a vaccine that is essentially a year-old. We don’t have cross-racial studies, or in-depth studies on children or studies on pregnant women or studies on interactions with other drugs. So we have a medical treatment we know is not always safe and we cannot predict who necessarily it will not be safe for and we it is brand new. We also know that the medical code of ethics for the American Medical Association accepts that some individuals have medical, religious, or philosophical reasons not to be vaccinated and it is a universal tenet that we must have informed consent to medical treatment. And yet right now in Colorado there is no protection for someone invoking these personal rights from being fired or not hired because they lack COVID vaccination. It would be perfectly legal for any employer to mandate that all employees get the vaccine or face termination. If it is true that the vaccine is nearly completely effective at eliminating the risk of dying due to COVID, then the non-vaccinated would not be putting the lives of the vaccinated at-risk—just their own which is their choice to make.

Arguments Against:

Bottom Line:

Vaccines are extremely safe—most reports made to the federal vaccine injury program are for minor claims like sore shoulders and even including those the injury rate is around 1 in 4.5 million, and very few reporters actually get any compensation whatsoever even though the program is a guilty until proven innocent model for vaccines
COVID-19 adverse reaction reporting seems to be following a similar path, with adverse reports occurring in 0.03% of shots administered. As with other deaths in the system, until they are investigated we actually have no idea how these people died. The CDC has noticed no adverse patterns in the data that indicates the shot is not safe
Over 530,000 Americans have died from COVID so far, putting us on track for COVID to be the deadliest event in American history—so the tiny risk from vaccines is dwarfed by the risk of COVID and because we don’t know how long immunity actually lasts (except that is not going to be lifetime) the only route to herd immunity is vaccination. The alternative is continuing as we are right now. The vaccines are extraordinarily effective and appear to nearly completely eliminate the danger of dying from COVID
Your right to make your own health care decisions stops when it actively harms other people. You have the right to not get vaccinated (even if it is a foolish decision) but you don’t have the right to endanger others at your job. The vaccine is effective so far against all known variants of COVID but if the virus keeps circulating through the population it will keep mutating and there is no guarantee the vaccine will continue to be effective

In Further Detail: First of all, vaccines are actually extremely safe. Adjuvants are safe, and excipients (which basically means preservatives and mercury) are also safe. Mercury is no longer used at all in children and the exposure from a vaccine is less dangerous than the type of mercury contained in many fish anyway. First, in 30 years just 520 death claims have been compensated by the federal reporting program referenced in Arguments For, and almost half of those involved an older whooping cough vaccine that hasn’t been used in 20 years. A chunk of these recent claims (half!) are for shoulder injuries from flu shots done improperly by the health care provider. On the other hand about 300 million vaccines are administered every year in the United States. About 1 in every million of these doses gets some sort of compensation for an injury (or 300 total). But of those payments, the compensation program itself says about 70% of them come from a negotiated settlement in which the government has not concluded the vaccine caused the injury. The head of the reporting program describes it as a “guilty until proven innocent” model. So the final math on the injury rate for vaccines is about 1 in 4.5 million. The nature of the reporting system for deaths also means there is no attempt to actually prove causation. We have no idea how the 929 people cited in the reporting system actually died. They quite literally could have died from falling off a roof (unlikely that this would be reported in this manner but it is possible). The CDC has evaluated all of the information coming in the system and concluded there is no patterns that indicate safety problems with the vaccine. The bill sponsors are touting data showing 15,923 adverse reports by February 21 to COVID vaccinations. By February 20^th 17.9 million Americans were fully vaccinated and 25.5 million had received just one shot. Because at that point the Johnson & Johnson single vaccine was not in use, we can say that means 61.3 million Americans had received a vaccine shot at that point. That is an adverse reaction rate (which remember, includes lots of things like “sore shoulder” and “slight fever” of 0.03%. 1 in 3.8 million. The death rate for COVID is hard to pin down because there are so many people who are never officially tested. But let’s take that adverse reaction rate (which is of course not even a death rate) and give two COVID shots to every single American: you just gave 98,460 Americans an adverse reaction to the shot. About 530,000 Americans died from COVID in the last year and the number is still rising. That is more Americans than died in World War II, more than in every other war except the Civil War combined, and we squarely in the middle of the number of Americans who died from the 1918-19 flu. Before we are done with COVID it may be the deadliest event in American history. We also know that so far the vaccine is extraordinarily effective. Reports from all around the world indicate that being fully vaccinated puts the risk of hospitalization and death down to near 0 and of course from getting the virus at all around 10% when exposed. So yes, vaccines are not 100% safe. But they are much safer than many of the activities we undertake on a daily basis (like driving a car or walking down the street) and they prevent things much worse. And the very nature of how vaccines work, with herd immunity helping those who cannot have one, means they are a public health concern. Each year in the United States, immunizations save 33,000 lives, prevent 14 million disease cases, and save $9.9 billion in direct health care costs. And that’s in a normal year, with no COVID. We spent over $5 trillion dollars at the federal level just in COVID stimulus, the final medical bill for care is likely to be astronomical. Businesses failed because we had to social distance to avoid spreading the virus. And yes it is true this is the fastest vaccination process in history. It is absolutely impossible to know the long-term effects of the vaccine. But here’s something else we don’t know: how long does immunity to COVID last? The belief is that we’ll need booster shots for years to come, including for people who already got COVID and recovered. So there is no other alternative to mass vaccination except letting the virus continue to rampage through the entire world and seeing massive numbers of deaths and economic disruption. We do have a long history in this country of accommodating others sincerely held beliefs and in letting people make their own decisions for their health care. But that must stop at the point where it endangers the health and safety of others, and that is why employers have the right to ensure the safety of their workplace and why in particular health care facilities must ensure their employees are not passing COVID to some of the most vulnerable people in our society. This is akin to an employer being able to fire you for firing off racial slurs in the office. You of course have the first amendment right to free speech. But you have no right to avoid any actions as a result of your speech. You have the right to not get vaccinated. It’s a mistake (unless you have a valid health reason you cannot get the vaccine) but you can do it. You have no right to keep your job if you are endangering the health of your co-workers and your customers. If the vaccine keeps spreading through the population it will continue to mutate. So far the vaccine is effective against the variants but that might not last. As a side note, many employers are thinking about encouraging vaccine adoption not by firing people who don’t get vaccinated but by offering bonuses to people who do. That would be illegal under this bill.

HB21-1197 Income Tax Credit For Income Taxes Paid (Kirkmeyer (R)) [Woog (R)]

KILLED BY BILL SPONSORS

AMENDED: Very Significant

Appropriation: None
Fiscal Impact: About $365 million lost revenue at full implementation per year, $1.8 billion over five years in original bill, unknown in amended version

Goal:

Cut state income tax rates to 0% for single filers making $20,000 a year or less and joint filers making a combined $40,000 a year or less. Expires after the 2025 tax year.
Reduce the amount that anyone can pass through to their taxes in business losses to $250,000 (currently is $500,000) through 2026. A bill that would have limited this cap to $400,000 last year would have brought in up to $147 million in revenue by 2023-24, the non-partisan legislative staff did not analyze the revenue brought in by this change prior to the bill being killed

Description: C corporations can pass through their tax liabilities to individual owners, so the income or loss is part of their personal tax return.

Additional Information: n/a

Auto-Repeal: January 2026

Arguments For:

Bottom Line:

Colorado has a regressive income tax system, due to our flat tax rate, tax breaks for the wealthy, and the effects of sales tax. The rich pay a lower percentage of their income than the poor
COVID made all of this worse by disproportionately affecting poorer Coloradans economically, while the wealthier among us either prospered or have mostly recovered, the poor face a long hard road just to get back to where they were (which to be clear, wasn’t great)
We have multiple other revenue sources coming into the state or potentially coming through bills in this session to help with school spending and transportation spending to backfill any revenue loss due to this bill (we also have a huge federal stimulus coming)
We bring in $14 billion in revenue, and the bill now has a mechanism to recover at least part of those losses through increased taxes on wealthier Coloradans we can afford to drop $365 million a year to help those who need it most

In Further Detail: In Colorado we have a regressive income tax system, which means the rich pay a lower percentage in taxes than the poor. This is because we start with a flat tax rate, and there are more lucrative tax breaks for the wealthy than for the poor. This unfairness is compounded by sales taxes, which of course are the same no matter what your income is, but hurt poor people much more. In 2015 those earning $200,000 or more paid an effective total tax rate to the state of 3.9% of their income. Those earning $0-$15,000 paid 6.3%. But people don’t put percentages into the bank account, so even if it was the same percentage the fact remains that you talking about people who in poverty versus people who are most definitely not. COVID just exacerbated this effect. Higher-earning Coloradans were the least likely to lose their jobs due to the pandemic and most likely to be able to work safely from home. Lower-income Coloradans were more likely to lose their job and have been the slowest to recover employment (a trend that is expected to continue through this year). The state estimates that Coloradans making over $60,000 a year are already at pre-pandemic employment levels while those making less than $27,000 a year remain at nearly 18% below pre-pandemic employment. Higher wage earners never even got below 11% levels. This bill helps those folks get back on their feet, truly, not just a one-off but several years of tax relief to help get their finances back in order. Now the state is expected to take in about $13 billion in this fiscal year and completely recover from the pandemic in terms of state revenue next year, as we close in on $14 billion. That is the number to keep in mind when we talk about bringing in $365 million less in revenue per year. We also have enormous amounts of stimulus money coming to the state from the federal government (over $1 billion), that we can use to shore up areas that may be affected by revenue shortfalls. When it comes to our schools, we are already on track to pass a bill in this session that greatly shifts the burden for funding schools from the state to local districts, so we should be able to rapidly make up the money we owe them. Transportation, another bill is looking to add billions in funds to address our shortfalls there (which will be highly regressive by the way, since it is mostly via increased fees on gasoline). So while it is always true that taking away money from the government will cause it to not be spent somewhere, we have multiple avenues to ensure important spending priorities don’t get harmed. On removing tax breaks, the idea that wealthy people just don’t need their hard earned money is not fair to them. Another way to look at our state taxes is that those who make over $200,000 a year support 1/3 of the entire tax burden of the state, while those that make $0-15,000 support just 3%. So the rich are paying. The more money we can allow them to keep in their businesses (remember their business income is being paid on personal taxes) the more they can grow their businesses and create more jobs. Pulling $150 million out of businesses in the state (as Arguments Against suggests) may help us feel better but may also damage the overall economy in the state.

Arguments Against:

Bottom Line:

The tax cuts in this bill are not balanced at all with the removal of tax breaks that wealthier Coloradans enjoy (and don’t really need) so as to keep the bill more revenue neutral
Pre-pandemic services in Colorado weren’t good enough so getting back to those levels should not be good enough: our teachers are among the worst paid in the nation, we have a multi-billion backlog of transportation needs and billions needed to fund our water plan. We have a behavioral health crisis in the state. Additional revenues from other sources to fill in the hole created by this bill won’t cut it may not be sufficient
State spending is already constrained by TABOR and we won’t hit our next TABOR refund until 2023-24 in all likelihood, so we wouldn’t be withholding money the state would have to give back anyway for the most part
It would be counterproductive to remove state income taxes but at the same time be forced to slash services the poorest Coloradans depend on

In Further Detail: There is no dispute that we have a regressive tax system and need to fix or ameliorate that. But the way to do it is to shift the tax burden, not lower it. We know from a bill that failed in last year’s session that there are at least $150 million a year in tax breaks to wealthier Coloradans we could remove to make this bill closer to revenue neutral. Because a key assumption of this bill is that pre-pandemic state revenues were fine, and so backfilling with other short-term stimulus money or reallocation of financial burdens will cover it. But we weren’t fine. It’s not just that we owe our schools hundreds of millions of dollars. It’s that our teachers are among the worst paid in the country. We have what amounts to a behavioral health crisis in the state and need massive investments at almost every level of care, including paying our providers more so we have enough of them. Our transportation backlog is a multi-billion dollar one, so we are still likely to be behind even after stimulus money and potential increases in fees. We are billions of dollars behind on our state water plan. The bottom line is that in this growing state we don’t have enough revenue to fund what we need. $14 billion sounds like a crazy number, but it actually isn’t enough. Now we are constrained by TABOR on revenue limits, which the voters have recently affirmed as what they want. So there is an upper point to what we can do. But we need to be at that limit. We aren’t expected to reach TABOR refund levels until at least 2023-24, so TABOR refunds are almost a non-factor in this discussion. We also just lowered the state’s income tax rate without any corresponding tax break corrections. So yes, we should do something to ease the burden of the poorest Coloradans as we recover from the pandemic, but it must be done in a way that doesn’t slash the very services many of them rely on. $365 million is more than the entire budget for the Local Affairs, Natural Resources, Agriculture, Governor’s Office, Labor and Employment, Law, Legislative, Military and Veterans Affairs, Personnel, Regulatory Agencies, and State departments (not combined, individually, though you could combine a bunch of the lowest ones). It’s a lot of money. The negative factor, what we owe our schools, was at $1.2 billion last year. Again, $365 million is a lot of money.

HB21-1211 Regulation Of Restrictive Housing In Jails (Lee (D)) [Amabile (D)]

PASSED

AMENDED: Very Significant

Appropriation: None
Fiscal Impact: None at state level but local areas will have to increase spending

Goal:

Ban the use of restricted housing in jails (essentially solitary confinement, see Description for definition) for people with serious mental health disorders, exhibiting self-harm or grossly abnormal and irrational behaviors or breaks with reality that indicate a serious mental health disorder or a self-reported mental health disorder; people with significant auditory or visual impairment that cannot otherwise be accommodated; women who are pregnant or post-partum; people with severe neurocognitive impairments; anyone under the age of 18; or anyone with an intellectual or developmental disability
Requires jails to track their usage of restrictive housing and their incidence rate for behavioral or mental health crises (see Description for more detail) and report this data quarterly to the state, which must make it publicly available. Must report use of solitary confinement exemptions in this bill (see Description) to facilities medical personnel within one 12 hours and the individual's appointed legal representative, designated emergency contact, or guardian within 12 hours.
Anyone placed in solitary using the exemptions in this bill must be checked every 15 minutes twice every hour and their behavior noted. If If bizzare or potentially self-harming behavior is noted checks must be every 15 minutes or more frequently unless a mental health professional says otherwise.
Jail must provide basic hygiene items, including shaving and showering at least three times a week; changes of clothes, bedding, and linen at least as regularly as the general prison population; access to writing and receiving mail; opportunities for visitation; access to legal materials; access to legal materials; minimum of one hour of exercise outside the cell five days a week and access to outdoor exercise at least once a week, weather permitting; telephone privileges to access judiciary system and be informed of family emergencies; and access to educational, religious, recreational, medical, dental, and behavioral health programs and services unless doing so would endanger anyone's safety. If the jail does not all for any of these items it must make a record of the denial and the reason why.
Jail must assess anyone placed in solitary within 24 hours for signs of any psychiatric or medical contradictions to the placement. This must be face-to-face and then done every 24 hours until they are removed from solitary. At least every 48 hours the individual must be assessed for continued need to be in solitary
Requires all jails to use an adequate health screening tool upon arrival of all inmates that includes a thorough health history, history of suicidal ideation or self-injury attempts, past or current mental illness, all drug use and any withdrawal symptoms, current or recent pregnancy, serious neurocognative issues, present or past medications, and observation of appearance. No one can be placed in soliatry until they are screened

Description:

Restrictive housing is defined as involuntary placement that requires an individual to be confined to a cell separate from other people with very limited out-of-cell time for approximately 22 hours per day, less than 22 hours on regular and appropriate intervals over a 7 day period (average of just over 3 hours per day), and restricted activity, movement, and social interaction.

Jails can place an individual alone in a room if the confinement is part of a routine practice that is applicable to substantial portions of the jail population for health or security reasons, if the individual was transferred to a mental health facility but refused treatment or was not admitted, they pose an imminent threat to themselves or others, or no less restrictive option is available and de-escalation techniques are not working. If a licensed mental health professional or psychiatrist diagnosis the individual as not having a serious mental illness, the self-reporting does not apply. In no case shall a facility hold someone who meets this bill's standards in solitary for more than 15 days in a 30 day span without a court order. The person may be kept in solitary if the request for an extension was filed in a timely manner and the case is still pending. Courts may only order more than 15 days if the person poses an imminent risk to themselves or others, no alternative is available, the jail has exhausted all other placement alternatives, and no other options exist.

For the report on confinement, data must include: self-identified race, gender, and age of inmate; whether they have a serious mental health condition; placement classification before being put in restrictive housing; basis for using restricted housing; date and times of restrictive housing; any alternatives attempted before restricted housing and if none, why not; whether the individual suffered injury or death in restricted housing and what it was and why; medical or mental health diagnoses of the individual and treatment provided by the jail that occurred while the individual was in restrictive housing, and whether the person was referred for a mandatory mental health or substance abuse hold and if so, if the hold was certified.

For mental health in general, jail must report: number of individuals in jail with identified mental health, substance use, and co-occurring conditions; how many individuals were transferred to a local hospital or crisis facility for mental health or substance use reasons and the outcome. The outcome includes: if the transfer was certified, if the person was held for more than 24 hours, if they were held for less than 12 hours, if they were still symptomatic when they were transferred back, any court orders for an evaluation and any orders for certification, and if the individual was not certified, the reason given for why. If jails cannot perform a mental health screening due to intoxication or something else that is incapacitating the individual, they must document the delay and do the screening within 24 hours.

Bill applies to city or county adult detention centers with more than 400 beds.

Bill gives authority to the existing jail-based behavioral health services program to spend money on helping local jails meet requirements of this program, including physical changes to facilities. Any such changes must be approved by the office of behavioral health.

Additional Information:

Serious mental health disorder is defined as one or more substantial disorders of the cognitive, volitional, or emotional processes that grossly impair judgment or capacity to recognize reality or to control behavior and that substantially interfere with the person’s ability to meet the ordinary demands of living.

Postpartum is defined as lasting until one year after a pregnancy has ended.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

It is pretty much undisputed that solitary confinement is extremely harmful to health. Multiple studies have shown the stress from such confinement is akin to torture and many organizations around the world call for the ban of its use in just the way this bill envisions
The bill does allow for health and safety exemptions as part of the regular routine and multiple studies and our own experience at the state level (where solitary confinement use has been severely curtailed for several years) shows no increase in levels of violence from curtailing solitary confinement
We have to ensure that if restrictive confinement is used, it is used in the most humane manner possible, with the most guardrails possible
We have to ensure the provisions of the bill are complied with, thus the need for detailed reporting

In Further Detail: Just about every major world and national health organization agrees that solitary confinement is extremely harmful to health. Multiple studies have shown the stress from such confinement is akin to torture. The National Commission on Correctional Health Care calls it cruel and inhumane and states that people in the categories the bill lays out should be excluded from it. In 2012 a national task force concluded that solitary was the most potentially damaging aspect of incarceration to juveniles. The United Nations Standard Minimum Rules for the Treatment of Prisoners also states the people in the categories the bill lays out should not be exposed to solitary confinement. For the concern about safety, first the bill allows for safety and health exceptions as part of regular routine. But there are also multiple studies that show no correlation between use of solitary confinement and the safety of the prison or jail. We already have severely curtailed its use in state prisons and seen no rise in violence in those facilities. It is time to do the same in county and city jails. We also have to ensure that anyone placed in restrictive housing is closely monitored, treated in a humane manner, and not left in solitary for long periods without a really good reason. For the reporting side of the bill, we can expect some resistance to this policy and have to ensure it is being properly implemented. Transparency is the only way to do that.

Arguments Against:

Bottom Line:

Corrections officials have extremely difficult and potentially dangerous jobs and many of them believe solitary confinement helps keep them safe. We should prioritize them over the inmates
As with any other system, abuses should be weeded out without tossing the entire thing
Sometimes prisoners do need to be separated for safety, including their own, which can require segregated facilities or staggered schedules that could require retrofitting in some facilities but the bill provides no new funds to do this
Allowing self-reported serious mental health disorders to qualify creates a large loophole that any clever inmate can exploit

In Further Detail: Our corrections officers have an extremely difficult and at times dangerous job. Many of them believe that being able to use solitary confinement helps keep them safe, particularly its usage as punishment. As with any system, we should work to weed out abuses and always strive to do our best to keep inmates as healthy as possible. But that should be a secondary consideration to the safety of our corrections officers. Furthermore, some county and city jails may lack the ability to provide the accommodations required to keep inmates safe without using solitary confinement. Sometimes prisoners do need to be separated from each other for safety. Doing this without solitary confinement involves segregated facilities and schedules that may require retrofitting of jails to achieve. The bill provides no new money for facilities that may need this help.Finally, the mental health disorder contains a rather large loophole that anyone can exploit: self-reported mental health disorder. So long as the inmate says it, the jail must honor it regardless of actual facts or circumstances.

HB21-1213 Conversion Of Pinnacol Assurance [Soper (R)]

KILLED BY HOUSE COMMITTEE

Appropriation: None
Fiscal Impact: $305 million

Goal:

Convert the state operated Pinnacol Assurance, which handles Workers’ compensation insurance, into a private company owned by the policyholders. This must be done 120 days after the bill becomes law
Within five days of the conversion, Pinnacol must transfer $305 million to the state, with ½ going to state reserves and ½ going the Just Transition Trust Fund, which was created in 2019 and provides grants to communities, coal workers and their families that are affected by transition away from coal-based power
New Pinnacol must remove its employees from the state retirement fund by January 2023. This requires utilizing a complicated formula (see Additional Information) the bill provides to determine how much Pinnacol needs to pay the state retirement fund in order to continue to fund past worker’s retirement benefits and how much it must pay monthly to fund Pinnacol workers who are already vested in the state plan and opt to “retire” at the switch to new Pinnacol. These workers can continue to work for Pinnacol without penalty. It is estimated that this will all cost Pinnacol $234 million. Pinnacol employees are about 1% of the state employee pool
New Pinnacol will remain the insurer of last resort for worker’s comp (means they must insure any company in Colorado that requests it) through 2025. At that point the state may contract with a different insurer if it wishes, with selection based on the state procurement code

Description:

The new Pinnacol Assurance gets all of Pinnacol’s tangible and intangible property and is clear of any taxes, liens, claims, rights, or interests of the state. It assumes all of Pinnacol’s creditor and lien claims and all insurance policies and claims that existed with the old Pinnacol. The state loses all liability associated with those claims.

New Pinnacol is barred from dissolving or liquidating itself without the permission of the commissioner of insurance.

New Pinnacol may appeal the final number given to dissociate from the state retirement plan within 30 days of receiving it in Denver district court. If it does not appeal, payment is due within 30 days. No retirement benefits for any employee can be reduced. The state must also provide the monthly payment amount on or after the disaffiliation date. All eligible employees who want to retire must have done so by then, so the state will know the exact pool of people it must cover into the future.

For selecting the insurer of last resort, the state may consider: minimum rating for the workers’ compensation insurer by a nationally recognized rating organization, financial size of the insurer, length of time the insurer has been active in Colorado (Pinnacol is credited to its original foundation in this case), and the insurer’s demonstration of ability to provide statewide safety consultation, employer training, and accident prevention, claims handling, medical case management, rehabilitation, cost containment, employee return to work capabilities, and a physical office in the state.

New contract must be for at least 10 years and include an option to renew, the insurer must notify the state with at least 3 years notice if it does not want to renew.

Additional Information:

The current board of directors becomes the new board of the new company until such times as board elections occur under the new bylaws (board must create these). These must ensure that each policyholder is a member and that the new Pinnacol operate as a domestic mutual insurer.

Membership in the new Pinnacol is not a security and premiums or policy fees paid to Pinnacol are not assessments.

The one-time disaffiliation payment from the state retirement plan is calculated with a really complicated formula. First the state needs to figure out the entire current value of the plan, broken down by 1. inactive member contribution balances, 2. active member contribution balances, 3. retiree and survivor liabilities, 4. employer-financed inactive member liabilities, and 5. employer-financed active member liabilities.

Next the state must check and see if the assets in the plan (considering plan reserves and liabilities owed) are depleted by group #1. If they are, then Pinnacol owes its ratio of inactive member balances to the entire state’s inactive member balances (in all cases we are multiplying Pinnacol’s ratio to the entire plan’s assets). If it takes until group #2, then Pinnacol owes all of its inactive member balances and its ratio of active member balances to the entire state’s active member balances. If group #3, then Pinnacol owes all of groups 1 and 2, and the ratio of group #3 and so on through group 5. Pinnacol also then owes the pension reserves required to fund all of its accrued liabilities in groups 1-5. Finally, Pinnacol owes a health care trust amount equal to present value of the future health care trust fund benefits for all active and inactive Pinnacol employees minus the market value of the assets already allocated to those employees (in essence, to cover future payments). Pinnacol must also pay the reasonable expenses of the state to figure all of this out, not to exceed $20,000 if Pinnacol disaffiliates on January 1 of either 2022 or 2023.

Bill lays out provisions that Pinnacol already uses as the insurer of last resort, namely ability to charge higher premiums to companies that it would have otherwise denied, and surcharges on companies that had their insurance canceled by another insurer. Also the terms under which insurer of last resort is not required to insure a business, including if they already have a policy; if the knowingly refuse to meet reasonable health, safety, or loss control requirements; if they are about to close or face bankruptcy, if they don’t comply with policy terms, or if they fail to provide or provide false application or audit information.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

This could be a win-win: Pinnacol gets to sell additional types of insurance and insure across state lines (which is why it wants to do this) and the state gets a nice lump-sum chunk of money
Pinnacol can easily make the payments required by the bill, it has about $1 billion in reserves
Rates should not be overly impacted going forward since the owners of new Pinnacol would be the very businesses paying those rates
Many other states do not have a quasi-state agency in the role of insurer of last resort and do just fine, we’ll be fine here too
No current employee who is fully vested in the retirement plan would have their benefits affected

In Further Detail: This is a potential win-win situation. Pinnacol wants to do this, because it would free them to offer other types of insurance and insurance in other states. 30% of the new business filings in Colorado in 2020 were for companies Pinnacol cannot serve without requiring the business to get another insurer in another state (and very few businesses would want to do that). The state gets both a big lump-sum chunk of money, which the bill directs toward maintenance reserves and the new just transition grant program, and out from under growing retirement benefits. Pinnacol has about $1 billion in reserves that would enable it to make the required payments. As for the impact on rates, Pinnacol would in essence be an investor-owned company. That is the very businesses paying their rates into Pinnacol are the owners. So making it private should not have any serious impact on rates. For worrying about the insurer of last resort, Pinnacol has already said it would want to continue providing this service and a lot of other states don’t have a quasi-state agency in this role and do fine. The bill would also open this position up to some competition, which is always a healthy thing, and we may find an even better solution than Pinnacol. For the employees at Pinnacol, first currently vested employees would not be affected by this change, they still get their benefits. Newer employees would of course be subject to whatever Pinnacol decided to do going forward.

Arguments Against:

Bottom Line:

There is more uncertainty here than we should be comfortable with, Pinnacol’s reserves are going to be somewhat depleted through this transaction which might impair their operating ability as the insurer of last resort
We have a working system we should not disrupt, Pinnacol has been doing this for more than 100 years and there is no guarantee privatization won’t have an impact on their service or their rates
Even though it is owned by the business paying premiums, that does not mean all of those busy employers will take an active management interest, which opens the door to the board spending money, like on marketing for new markets, that drives up premium rates. What happens if the new markets flop?
The employees at Pinnacol are going to lose out, not any current employee fully vested, but everyone else is not going to see retirement benefits as good as what they currently would get through the state

In Further Detail: There are a few uncertainties here that should not be glossed over. First, we are taking a huge chunk of out Pinnacol’s reserves, depleting them by probably about half with on-going monthly payments required too. That may seriously impair their ability to continue to operate effectively as the insurer of last resort, regardless of the new markets that open up to them. Second, we have a system that is working here, Pinnacol has been in this role for more than 100 years and currently provides coverage to 56,000 companies, and there is no guarantee that privatizing them won’t have an impact on their service or their rates. Sure, the individual businesses are the owners, but good luck corralling 56,000 different busy employers to pay close attention to what the board is up to. Entering new markets requires a lot of marketing expense, what happens if it’s a flop? We have to protect the concept of the last resort insurer. Finally, it should not be overlooked that the employees at Pinnacol are going to lose in this transaction. Not currently fully vested employees but everyone else and every future employee at the company. There is no way that Pinnacol is going to offer retirement benefits as good as the state’s, so 600+ employees in the future are losing out.

Bottom Line:

This is not the appropriate way to spend the $300 million payment when we owe hundreds of millions of dollars to our schools and have about a billion dollars worth of transportation projects that need funding across the state

HB21-1232 Standardized Health Benefit Plan Colorado Option (Donovan (D)) [Roberts (D), Jodeh (D)]

SIGNED INTO LAW

AMENDED: Very Significant

Appropriation: $1,619,637
Fiscal Impact: About $2 million a year

Goal:

Requires commissioner of insurance to develop a standardized health benefit plan for insurers called the Colorado Option. Plans must be at least ACA bronze, silver, and gold levels of coverage, include the essential benefits package required under the ACA, have designed benefit and cost sharing, and provide first-dollar, predeductible coverage for certain high-value services that reduce racial disparity in health outcomes such as primary care and behavioral health care as appropriate. Commissioner must work with stakeholders (see Description) to create the plan and it must be designed to improve racial health equity through variety of means including perinatal coverage. It must be actuarially sound
Carriers only have to offer the Colorado Option if by January 2023 they have not reduced their premiums by 10% compared to 2021 (county by county comparison) and by January 2024 if they have not reduced their premiums by 20% compared to 2022. Insurers must set a goal of offering the standardized plans at 10% less in 2023 and 20% less in 2024 than 2021 rates. All of this is for both the individual and the small group markets. Beginning in 2025 insurers are encourage to reduce their price increases by no more than inflation plus 1% must offer the plan on the individual and small group markets beginning in 2023. The commissioner cannot force insurers to offer the plan in any county where the insurer doesn't offer insurance. The premium rate for the plan must be at least six percent less than the premium rate plans offered by the provider in the same county in 2021, adjusted for medical inflation. This will be calculated by the commissioner of insurance. If the insurer didn't offer coverage in that county in 2021, then the rate must be 6% 5% less than the average of all rates in the county in 2021 in that market (so individual for individual plans, small group for small group). In 2024 this rate reduction must be 12% 10% as compared to 2021. In 2025, 18%15% compared to 2021. Thereafter premiums can only increase by medical inflation.
Commissioner to create fee schedule for the Colorado Option to pay providers. Commissioner may take into account circumstances of critical access hospitals (only hospital serving area), rural and independent health care providers (not part of any larger system), and providers that serve a higher than average number of uninsured and/or Medicaid patients. May also consider cost of adequate wages, benefits, staffing, and training for providers’ employees to provide adequate care. By 2025 these reimbursement rates must achieve the 20% reduction in premiums goal and the inflation+1% goal thereafter.
If insurers cannot meet these rate requirements and keep network adequecy (see Description), the commissioner can, after a public hearing, modify provider reimbursement rates. Base reimbursement for hospitals must not be less than 155% of the hospital's Medicare or equivalent reimbursement rate. Essential access hospitals or hospitals that are not part of any network (so unaffiliated with other hospitals) get a 20% increase and if a hospital is both (essential and unaffiliated), 40%. Hospitals that exceed statewide average of Medicare or Medicaid patients get up to a 30% increase, actual amount based on their actual number of such patients. For hospitals that prove efficiency in managing care based on margins, operating costs, and net patient revenue, up to a 40% increase. For pediatric hospitals with a level one trauma center, a 55% increase and no other increases (so doesn't matter if they qualify for any of these other increases). For providers, rates must be a minimum of 135% of the Medicare rate for the same service in the same area. But the commissioner cannot decrease rates for any hospital by more than 20% in one year. The commissioner can also force providers hospitals to accept these rates (in other words force them into accepting the Colorado Option) in order to ensure network adequacy but it cannot force providers (except for hospitals that provide a majority of services through a single contracted medical group for a non-profit HMO) to work with specific insurers. Commissioner must contract with a third-party organization to determine how to best phase-in these new rates using a quality metric adjustment and an acuity adjustment as measured by the hosptial's case-mix. Evaluation must be complete by end of 2022
Providers are banned from balance billing consumers in the Colorado Option, which means they cannot charge consumer more than the Option reimburses for services
Every health care provider in the state must accept the Colorado Option, except the commission may exclude providers from the fee schedule or change it if the provider can demonstrate it will reduce its ability to accept or provide coverage to the uninsured and Medicaid/CHP+ patients
Creates the Colorado Option Authority, which is to operate as an insurer in Colorado only if all insurance carriers fail to meet the 10% or 20% rate reduction goals. Board is a quasi-public entity (it operates independently from any branch of government but is not a private corporation) governed by a board. Board must also appoint an advisory committee to help it carry out its work. Authority requires a waiver from the federal government to capture savings in Medicaid to use to fund the Authority. Commissioner must consult with an advisory board created by the bill to adminster this bill. Committe must also consider recommendations to streamline prior authorization and utilization management for the plan, ways to keep health care services in the communities where patients live, and consider alternate payment models for particular services, keeping in mind the impacts of such models on people of color. Bill also creates an insurance ombudsman to advocate for consumers in any public hearings on rates or access required by the bill. Ombudsman also to evaluate the Colorado Option for network access and affordability and interact with consumers regarding any issues with the plan</span.

Description:

The network requirement for the plan is one that is culturally responsive and to the greatest extent possible reflects the diversity of its enrollees and is no more narrow than the most restrictive network the carrier is offering for other plans in the area. When carriers develop networks for the Colorado Option, they must include as part of the network a description of the carrier's efforts to construct diverse, culturally responsive networks that are well-positioned to address health equity and reduce health disparities and include a majority of the essential community providers in the service area. Carriers must file action plans with the commissioner if they cannot construct an adequate network

Premium rate reductions must account for policy adjustments deemed necessary to prevent people with low and moderate income from experiencing net increases in premium costs (lots of people get subsidies for their insurance from the federal government). Commissions paid to insurers for plans must be comparable to the average commissions for other plans in the market.

The reimbursement rate structure set by the commissioner is available to other health care plans, including co-operatives, if the commissioner approves.

Commissioner must consult with employee membership organizations representing health care providers’ employees in the state and with hospital-based health care providers in setting reimbursement rate formulas.

Stakeholder process for creating standardized plans must include physicians, individuals who represent health care workers or work in health care, health care industry and consumer representatives and individuals working in or representing diverse communities. Diversity is defined as race, ethnicity, immigration status, age, ability, sexual orientation, gender identity, and geographic regions of the state affected by higher rates of health disparities and inequities. Commission can update the plans annually by rule. If insurers are offering them, Standardized plans must be offered in a way that allows consumers to easily compare them.

Requires the commissioner to contract with an independent third party to analyze the impact of this bill on health plan enrollment, health insurance affordability, and health equity. This must be disaggregated by race, ethnicity, immigration status, sexual orientation, gender identity, age, and ability to the extent possible. It also must include information on total out-of-pocket spending. Report due by January 2026. Commissioner must also contract with an independent third party organization to analyze the effect of this bill on staffing, wages, benefits, training, and working conditions of hospital workers and as it relates to provider workload. This must produce three different reports, one in July 2023, then July 2024, and then July 2025. State must report to the legislature on the implementation and effects of this bill every year.

Carriers can take reimbursement rate disputes with providers to non-binding arbitration. At any public hearing regarding rates, alll affected parties must be allowed to testify (insurers, hosptials, providers, consumer advocacy organizations, individuals, and the ombudsman). The hearing must be limited to the reasons why the insurer cannot meet either the premium reductions or network requirements. All rulings by the commisioner are appealable in district court.

If an insurer working with a co-op has previously achieved 18% reductions in premiums, regardless of first year benefit plans were offered, that plan is deemed to comply with the requirements of this bill (so no Colorado Option needed).

When considering premium amounts and if they meet the reduction requirement, the commissioner must take into account actuarial differences between the Colorado Option and health plans offered in 2021, any changes to the Colorado Option, and any federal or state law changes after 2021 that would affect premiums. For the purposes of reimbursement rate setting for an insurer who failed to meet the reduction requirements, the insurer must provide reasonable information to identify which hospitals or providers were responsible for the failure (or for failing to meet network requirements).

Commissioner is barred from using failure of insurers to meet Colorado Option rate reduction or network requirements in consideration of approval of other plans from the insurer (all insurance plans must already be approved by the commisioner in this state)

Bill bans cost shifting between the Colorado Option and other insurer plans (jacking up rates on the plans they control to cover lost or less money coming in on the Colorado Option). Failing to comply with the terms of the law subjects license holders to discipline from the state, including unprofessional conduct charges. hospitals to discipline on their license, including having it revoked suspended. Hospitals can be fined up to $10,000 per day for the first 30 days it fails to comply and up to $40,000 a day for each day after. Providers can be fined up to $5,000 (just a flat fine) and are not subject to any other discipline.

If the federal government creates a federal public option for insurance that is as good or better than the Colorado Option, then the entire Colorado Option and Authority are repealed. State is to ask federal government for an innovation waiver so as to capture all applicable savings to the federal government from this bill for the state. If approved, the state is to give that money to the already existing Colorado health insurance affordability enterprise to increase the value, affordability, quality, and equity of health care coverage for Coloradans historically and systematically disadvantaged by health and economic systems.

Board members are appointed by governor, require Senate confirmation, and serve four-year terms. They receive a per diem and reimbursement for expenses. Board is subject to state open meetings laws. It must hire an executive director to run the Authority. It may contract with other state agencies to implement the Colorado Option., board is composed of 11 members and the governor must strive for a diverse board and try to ensure at least a third of the board members are people of color and that rural areas of the state are represented.

Additional Information:

For counties where insurers did not participate in 2021, the goal should be 20% rate reduction compared to the average premium rate in that county in 2021.

State to survey Colorado Option consumers on their purchasing experience and whether the plan addresses health equity and health disparity concerns. Survey must be completed by January 2026.

Board is composed of nine members and each member must have expertise or experience in at least two of the following areas: must to extent practicable include people who:

Individual health insurance coverage Have faced barriers to access, including people of color, immigrants, and those with low-incomes
Value-based purchasing and plan design Have experience using the Colorado Option
Health care consumer navigation and assistance in accessing health care Represent consumer advocacy organizations
Health care finance Have experience in health equity
Provision of health care services in rural areas Have expertise in health benefits for small business
Provision of health care services to uninsured and low-income populations Represent insurers or who have experience designing health plans and setting rates
Health care actuarial analysis Represent hospitals or have experience in hospital/insurer contracts
As a member of an employee organization that represents employees in the health care industry Represent providers or have experience in provider/insurer contracts
Health care delivery systems Represent an organization that represents health care employees
Representing consumers in the development of health care policy Licensed or retired physicians who practice or practiced in Colorado
Hospital administration
Insurance brokerage
Improving health equity for communities of color and decreasing racial disparities in health care

Board as a whole must cover most of these areas. At least five members of the board must be consumers, representatives of consumers, and small business owners. One member must be a representative of hospitals and one must be a representative of providers. No members can be employed by an insurer or managed care organization. Members must publicly disclose any conflicts of interest. The board should reflect geographic, ethnic, racial, immigration status, income, wealth, and ability of the state as much as possible. Must attempt to appoint members from both rural and urban areas.

The advisory committee is left open to the board in terms of appointment requirements. Board must give special consideration to Coloradans with low-income and to communities of color. Must include members who intend to enroll in Colorado Option and must reflect diversity of the state.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Multiple regions in the state still struggle to obtain affordable and useful insurance—10 counties had access to only one insurer through the state exchange
Health care is different than any other thing we purchase: we don’t price out our options, we don’t understand our costs and options, we don’t have choice of insurers in most cases, and we can’t just not get care
Insurance companies remain extremely profitable with net profit margins higher than before the introduction of the Affordable Care Act in 2010 and hospitals in this state are wildly profitable (pre-COVID), 2^nd highest profitability rate in the nation. Both can afford the 10% and 20% 18% 15% reductions the bill calls for and still provide service (and yes, make a profit)
By providing rate flexibility to various providers that are actually struggling right now that serve Medicaid patients or are critical access hospitals or any of the other automatic increases on the list, the bill could actually help them more than the status quo
The bill gives the entire industry a final chance to put their money where their mouth is and bring down costs—only if they fail does the heavy hand of government come in

In Further Detail: Multiple regions in Colorado still struggle to obtain affordable, useful insurance. The useful clause there is important, low-cost mostly useless insurance doesn’t do anymore much good and is the system we had before the Affordable Care Act when bankruptcy from health care costs was considered a normal thing in this country. 10 counties had access to only one insurer through the state’s exchange in 2020. The federal government doesn’t seem like it is going to do anything to address this, so it is up to us. Free markets have utterly failed in this industry for several very good reasons. First, consumers do not “price” their health care options. It is nearly impossible to do so even if you wanted to shop around at various providers. Second, consumers mostly do not have the choice over their insurance to begin with, since the vast majority get it through their employer. And most importantly, we cannot choose to not get health care. We all need it and we cannot choose when we need it. And so we have two choices: offer insurance through the government where the government is in essence the insurance company and pays out all claims (similar to the Canadian system) or create and manage an insurance option. In essence, attack head-on the problems we all see in the health care marketplace through an insurance plan that must be offered throughout the state. We passed a bill two years ago to explore this issue and the committee it created recommended this solution. A Canadian type system just does not fit with state finances (multiple other states including Vermont and California have explored this and come to the same conclusion). So what are these problem areas? First, insurance companies themselves, who remain an extremely profitable industry, with net profit margin higher than before the introduction of the ACA (3.4% in 2018 and rising) on vastly increased revenues (thanks in part to all of those new ACA customers). Second and most importantly, a big part of this is hospitals. Denver-area hospitals made a record $2 billion in profit (yes profit, not revenue) and prices overall in the state grew 70% between 2009 and 2018. In the state, hospitals are now profiting (again, profiting) at $1,518 per patient in 2018. That number was $538 in 2009. A 280% increase in pure profit. Coloradans have lost billions of dollars just so these hospitals can make more money, mainly through charging non-Medicare and Medicaid patients far more than they need to offset any potential losses. We have the second highest hospital profits in the entire country, the fourth-highest administrative expenses (non-medical care—you don’t profit on salaries but you can compensate your executives highly, like over $5 million a year for the CEO for instance), and the second-most hospital construction in the country, despite the fact that we are one of the healthiest states in the nation. And this is an industry dominated by “non-profits” (over ¾ of the hospitals in the state) who aren’t supposed to care about making a profit at all. These non-profits have cut spending on charity care by 2% according to the latest tax data available while instead money is plowed into unnecessary construction (our occupancy rate is below average for the country and dropping) and stockpiling of “reserves”. All of that extra cost gets passed on to us through insurance premiums. And yes, this is all pre-pandemic numbers. The industry has been hit hard by the pandemic but we should absolutely not make public policy based on once in a generation problems that are right now starting to fade (and will fade more rapidly with more vaccinations). Probably the most controversial part of this bill will be the rate setting, providers of course face similar issues with Medicaid and Medicare but have more flexibility to opt-out of providing some of that care. The break-even point for most hospitals is believed to be at about 143% of Medicare rates. In 2019 hospitals were charging an average of 280%. Between just that and insurance profits, it is easy to see all of the money being drained out of our pockets in this industry. Then of course we want to not have a one size-fits all rate but target hospitals in specific circumstances (including having more of those low fee Medicare and Medicaid patients) for higher reimbursement rates. No one wants to run hospitals out of business or put added stress on hospitals that are already struggling (thus the ability to also have a complete exemption from these rates). We just want to reign in one of the worst systems in the entire country when it comes to cost. So yes, the state sets reimbursement rates and those rates may in fact drive other insurance plans offered in the state to negotiate their own rates from a place of power, rather than their current place of weakness in the face of the monopolistic structure of our hospital system (where there has also been a lot of consolidation of ownership). That is in fact the entire point. We do not need the most profitable hospital industry in the nation. The design of the bill may actually also raise reimbursement for some hospitals who are not part of a big system, critical care locations, and efficiently serving high numbers of Medicare and Medicaid patients (for last year’s bill, the media found found at least 10 hospitals, all rural, that they believe will actually see rate increases, since this year’s does not have specified rates in the bill, it is impossible to know for sure if the number will be similar and the numbers in this bill are exactly the same, so the same analysis holds). And those are precisely the hospitals that are currently struggling and the ones we want to reward. The bill also protects against two main areas of concern with a state-backed plan: that insurers will simply shift costs to non-Colorado Option plans and that those on subsidies will be negatively affected. For the first, the commissioner of insurance can deny any rate change that is a cost shift (all plans must be approved by the commissioner to appear on the marketplace right now). As for the alternative total cost of care model proposed in arguments against, this is a model that fails to acknowledge that our current spending is wildly out-of-control and instead locks that spending level in and just tries to “limit” future growth. Massachusetts may believe they have saved money by using this plan compared to nothing at all, but insurance premiums and out-of-pocket expenses have grown there by more than their targeted maximum growth figure (which was 3.8%, well above inflation). So it may be somewhat helping but it by no means gets a full handle on the problem. The final point is the concern over insurers fleeing the state entirely. This gets parts of the equation here wrong. Insurers are going to love the reimbursement rates set on hospitals, if it even occurs, and if it doesn't, they'll love the lower reimbursements that allow them to get premium costs down (who also aren’t going anywhere) and are going to love the bargaining power this option gives them when it comes to their own plans. Which brings us to the final, and most important part of this bill. The medical industry has been telling us for years that they can handle bringing down skyrocketing costs without the heavy hand of the government. Well, here’s their chance to prove it. All of the heavy government intervention only occurs if the private sector fails. And if it does fail, then yes, insurers will face competition for an in-essence non-profit government operation that every single provider in the state must accept.the state will step in and start setting rates. Because we are doing waiting on false promises and ready to see some action.

Arguments Against:

Bottom Line:

More free market innovation is the way to bring down costs, get the government out of the way and let insurers provide plans with more flexibility in terms of what they cover
The market is also improving right now, it was 14 single-serve counties in 2019 and insurance premiums in these areas are dropping
The bill sets out an impossible task for the industry and then when it inevitably fails introduces government intervention on steroids: commissioner of insurance setting rates for the entire state (so price controls) and the ability to require all some providers to participate
Hospital profitability is more complex, it includes profits from investment income and we need new construction as one of the fastest growing states in the country
Health care is also just plain expensive, due to the really high cost of research and development of new drugs, new procedures, and new technology
Instead of a government smackdown, we should go with the collaborative model used in Oregon and Massachusetts (hardly conservative bastions) whereby the state works with the industry to set cost growth goals and works with individual providers who fail to meet them. Massachusetts believes it has saved billions of dollars with such a program

In Further Detail: Getting costs down by getting more free market innovation into the space is the right way to go, not more government involvement. There is a reason why there are few insurers who want to provide coverage in these counties and that is because of the high cost of delivering health care in these areas. Thanks to the Affordable Care Act, these insurers cannot offer lower cost plans that do not cover as much, so everyone is stuck with high priced plans. We need to get government out of the way, not more deeply involved as this bill envisions. It is also important to note that the number of single-serve counties is dropping (it was 14 in 2019) and insurance premiums on the exchanges in these areas are also dropping (thanks in part to a reinsurance bill passed by the state in 2019). In essence, this bill gives an enormous amount of power to unelected government officials to basically set the health care market for the entire state. The commissioner of insurance gets to create this plan and its requirements and tell providers exactly what they are allowed to charge for services. It is government price controls, plain and simple. This is government intervention on steroids. Oh yes, it only happens if the industry fails the test the state sets out for it, which is a basically impossible goal with two or three years to achieve. The bill wants the industry to fail. For hospitals, there is a lot to unpack here. First, the profit numbers include profits from investment income (reserve funds, which no one denies a hospital should have, don’t just sit in a bank account), and the profits due to just patient care drop the profit margin from 10% to 4%. And of course we need new construction, we are one of the fastest growing states in the country. We might be somewhat under-capacity right now, but we know more people are coming. And when it comes to cost, the fact that no one like to talk about is that health care innovation is incredibly expensive. All of the work that goes into creating new drugs and new equipment and new procedures that benefit us all must be paid for. And hospitals frequently have to make significant capital investments in that new equipment just to keep up. But yes, there probably is extra cost here that could be addressed. But instead of government pricing controls, we should look to the model used in Massachusetts and Oregon (hardly bastions of conservative thought). This is a total cost of care model that sets a desired target for how much health care spending can grow and then work with hospitals that do not meet the target (including public hearings and a formal improvement plan). Massachusetts believes it has saved billions with this program and we can do the same here in Colorado by working with the hospital industry, not in conflict with it. And that truly is the bottom line here, a collaborative approach with all elements of this industry to foster innovation and competition by removing government oversight. Then consumers can pick options that work best for them, which in a free market drives money to the best operators in the industry, including those with the best costs. Because this plan runs the risk of insurers and hospital providers deciding they don’t want to participate in Colorado at all. The commissioner of insurance or state government cannot force them. So instead of creating more options and lower costs, we could end up with fewer options as these companies flee the state entirely and we are left with a single government insurance plan with lower quality providers that don’t adequately cover the state’s needs.

Bottom Line:

One too many threads have been pulled out of this, but allowing everyone except hospitals to refuse to accept the Colorado Option, it may be doomed to failure. Because what provider is going to want to take the potential mandatory haircut on their profits when they can just ignore the plan? If the plan has poor network coverage in the state, then it becomes useless. It is very important that this succeeds out the gate, because the folks that want it to fail aren't going to let us take multiple whacks at getting it right

HB21-1233 Conservation Easement Tax Credit Modifications (Donovan (D), Winter (D)) [Roberts (D), Will (R)]

PASSED

Appropriation: $461,370
Fiscal Impact: About $23 million in lost revenue each year, $600,000 in spending first year then $500,000 each year thereafter

Goal:

This bill wants to make conservation easements more attractive so that more people donate land for conservation purposes. It does this by increasing the value of the land that people can get credit for, allowing more organizations to donate easements, and allow multiple owners to reach the statutory $5 million cap on amount of tax credits per easement individually rather than cap their personal amount at a lower amount (the bill does not touch any current legal maximums for easements).

Description:

Modifies the method of calculating the amount of the tax credit that can be claimed by easement donors. Changes the amount an easement donor can claim for tax credits from 75% to 90% of the fair market value of the land when the easement was created for future easements. Overall cap of $5 million remains, and the distribution of credits in $1.5 million maximum increments per year also remains. Bill also increases amount of tax credit that can be allocated to each owner of a business with multiple owners from $375,000 to the $5 million overall cap. Also repeals a requirement that conservation easement owners add back on their taxes any federal tax deductions they took on the easement.

Bill allows any non-profit, entities with authority to conduct water activity, and ditch and reservoir companies to donate easements and claim credits, with the full ability to transfer the credits like any other easement owner. The division of conservation is also allowed to hold donated easements.

Requires any easement donated after 2021 to be issued a certificate by the division of conservation to demonstrate the credit’s validity. This eliminates the need for the taxpayer to file the certificate with their tax returns. Anyone who transfers their credits must file a joint written notice within 30 days, rather than submit the notice with their tax returns. The department of revenue must create a system to track these transfers for easements donated after 2013.

For easements donated before 2014, current restrictions on claiming other tax credits in years in which the taxpayer claimed the easement credit are removed.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Conservation easements are a valuable tool to maintain areas of our natural environment and are entirely voluntary. A study found that they have delivered $6 of value for every $1 invested by the state
We have a legal cap of $45 million a year of tax credits allowed that we aren’t near reaching. The bill keeps that, and other caps, while making the credits more attractive and more widely available to try to get more people to donate land. To be clear: we want to reach that cap so the lost revenue is not a bad thing

In Further Detail: Conservation easements provide a valuable tool for us to maintain areas of our natural environment while recompensing property owners for their trouble and for the reduced value the easement places on the property. They are entirely voluntary. From protecting Palisade peaches to tourism, a study found that easements have delivered $6 of value for every $1 invested by the state. So what this bill does is encourage more easement donation. It is critical to point out that maximum caps all remain in place, the fiscal note basically envisions that we will reach the legal maximum of $45 million a year due to these changes and no one easement can earn more than $5 million per owner in tax credits. The increase to 90% was also part of recommended changes by a bipartisan working group to the easement process. As part of trying to get more easements in the state, it makes sense to open them up to non-profits and companies dealing with group water rights. Much of the rest of the bill is simple blocking and tackling stuff to make the system work better.

Arguments Against:

Bottom Line:

The easement system is not the greatest thing in the world. It binds future owners to the easement, which can lower property values, the appraised value is almost always lower than the initial amount provided to the landowner, and an unacceptably high number of easements get disallowed (which means the tax credits must be returned). We should therefore not be pushing to reach that $45 million cap and instead use the $24 million we are going to lose every year on critical state needs, like our water plan which needs billions of dollars going into the future.

Bottom Line:

It is not fair to the owners of previously created easements that new easements will get 90% instead of 75% of value. Yes the overall cap remains, but anyone who was below that cap is losing out on tax credits merely by creating an easement at the wrong time. Program should be the same for everyone, so either more retroactive credits are in order or we should keep it the same going forward.

HB21-1266 Environmental Justice Disproportionate Impacted Community (Winter (D), Buckner (D)) [Jackson (D), Weissman (D)]

PASSED

AMENDED: Very Significant (category change)

Appropriation: $2,696,921
Fiscal Impact: About $700,000 a year

Goal:

Put part of the state’s roadmap for reduction of greenhouse gas emission by sector into law so as to meet the emissions reduction levels required by state law. This includes 80% reduction targets for all utilities by 2030 (on a 2005 baseline), 60% for oil and gas (same baseline), and 20% for industry and manufacturing (on 2015 standard). The bill also sets a price per ton of greenhouse gasses released that are not already covered by the state and uses the money raised to pay for a new ombudsperson and advisory council dedicated to serving the interests of people in communities disproportionately impacted by environmental pollution. And the bill requires the air quality commission to use the social impact of emissions in its cost-benefit analyses based on a value given per ton of emissions. Get the air quality commission to do more outreach work when making decisions, specifically in communities disproportionately impacted by negative environmental factors (like pollution or waste), and ensure outreach is done before decisions are made with plenty of different types of opportunities for input. Also create a task force to examine how we can better involve the impact on these communities into state agency decision making that affects them.

Description:

The bill requires each wholesale electricity generation and transmission cooperative (which is Tri-State, Xcel and Black Hills, investor-owned utilities, already have this requirement under a 2019 law) to submit a plan to reduce their emissions by 80% of 2005 levels by 2030. If they don’t submit a plan that is approved by the end of 2022, the commission is to require reduction by rule for that utility of 48% by 2025 and 80% by 2030. Plans must deal with actual emissions going into the atmosphere and cannot rely on reductions that have not yet occurred or occur out-of-state. A utility that fails to meet its targets in two straight years or that the commission feels is not on track to meet the goal is subject to additional and more strict emissions limits than the rules require.

By the end of the year the commission must adopt rules that will reduce statewide emissions from oil and gas operations by 36% of 2005 levels by 2025 and 60% by 2030. The rules must include protections for disporportionately impacted communities and more robust monitoring, leak detection, and repair requirements.

By the end of the year the commission must adopt rules that will reduce statewide emissions from the industrial and manufacturing sector of the state by 20% of 2005 2015 levels by 2030. These must include protections for disproportionately impacted communities and a 5% reduction for those industries that already employ best available emission control technologies (as determined by commission).

Allows the commission to setup a trade system, where companies can meet their compliance requirements through purchasing, creating, or exchanging greenhouse reduction credits. Before setting up the system, the commission must create a comprehensive and centralized accounting system to track these credits and transactions which must prevent double-counting and identify sources of emissions that impact disproportionately impacted communities.

Requires that if the existing biannual climate report to the legislature shows the state is fallings short of its climate goals, the state has six months to propose additional requirements to the commission to make up the gap.

One of the new programs is an environmental justice ombudsperson, appointed by the executive director of the department of public health and environment. They are to have experience or training in environmental justice and be either a resident or have worked directly with a disproportionately impacted community. Duties include being an advocate for these communities and serving as their liaison to the government, increasing flow of information to these communities and conducting outreach in them which includes in-person meetings, serve as a place to receive complaints about environmental justice from the community, enable meaningful participation in the state’s decision-making process, serve in an advisory capacity to other state agencies and to work collaboratively with the environmental justice advisory board (see below).

The environmental justice advisory board and associated environmental mitigation grant program is the second new program the bill establishes. The program is for projects that avoid, minimize, measure, or mitigate adverse environmental impacts in disproportionately impacted communities. This can include health effects and health disparities. The program is funded by a new cash fund the bill sets up, which is to receive 20% of the existing fines for violating pollution laws and rules and fees on industry (right now 100% goes to general fund) this year, then 40% next year, 60% in 2023-24, 80% in 2024-25, and 100% thereafter.

The advisory board is to develop guidelines for the grant program and award grants. It consists of 12 members, of which 11 are voting members who receive a $200 per diem (tied to inflation) and can be reimbursed for expenses (non-voting member can also be reimbursed for expenses. The board is also to work with the ombudsperson, including in outreach efforts; study, research, and advise the state on matters the board deems are important to enable the state to interact with disproportionately impacted communities; and address any other matters relating to adverse environmental impacts on disproportionately impacted communities referred to it by the state. Board set for repeal with sunset review in 2027.

Requires the state air quality control commission to strive to find new ways to gather input from communities across the state, using multiple languages and formats, when it is considering rulemaking. When reaching out to disproportionately impacted communities, the agency must schedule variable times of day and week for public input, including at least one weekend day, one evening, and one morning; provide notice at least 30 days prior to any public input opportunity; utilize several methods of outreach including schools, clinics, social media, social and activity clubs, local and tribal governments, libraries, religious organizations, civic associations, community-based environmental justice organizations, and other local services; provide multiple methods to give input such as in-person, virtual and online meetings, online comment portals or e-mail, and call-in meetings; consider a variety of locations for meetings, including urban and rural and in disproportionately impacted communities; and create materials in the top two languages spoken in a community in plain language on the entire process.

The bill also creates the Environmental Justice Action Task Force to recommend and promote strategies for incorporating environmental justice into state agency actions. This includes addressing the human health and environmental effects of programs policies, practices, and activities on disproportionately impacted communities; improving cooperation between all levels of government; ensuring meaningful involvement and due process in environmental law and policy decision-making; and helping build healthy, sustainable, and resilient communities.

The task force is specifically tasked with:

Developing a state agency-wide strategy and plan to implement the strategy, including: implementing equity analysis into all significant state agency actions, potential for requiring such an analysis for certain actions likely to affect disproportionately impacted communities; potential requirement that negative impacts on disproportionately impacted communities must be avoided or mitigated; potential tying of permit issuance to impacts on disproportionately impacted communities; potential requirement that these communities have a role in any project that is undertaken with settlement money related to violations occurring in these communities; and creating measurable goals
Adopting a plan to address lack of data and data sharing between state agencies about environmental hazards and improve data collection efforts in disproportionately impacted communities
Assisting with outreach to these communities as part of state air quality commission actions as required by the bill
Evaluating the definition of disproportionately impacted communities in law

Task force to consist of 19 23 27 members and hold at least six meetings with final report issued to legislature by November 14, 2022.

Disproportionately impacted communities are defined in the bill as: proportion of households that are low income (200% of federal poverty line or lower) is greater than 40% or proportion of minority households is greater than 40% or proportion of households than spend more than 30% of income on housing is greater than 40%. Individual communities can also be approved by state agencies if the community has a history of environmental racism through redlining, anti-indigenous, anti-Hispanic, or anti-Black laws or the community has multiple factors including socio-economic stressors, disproportionate environmental burdens, vulnerability to environmental degradation, and lack of public participation may act to cumulatively affect health and the environment.

The bill also requires the existing just transition office to develop a long-term budget to adequately finance the just transition plan (helping communities and workers move away from coal and oil and gas related industry).

The bill changes the state energy office's mission by removing the mandate to focus on all energy, requiring the office to focus on the state's transition to a clean energy economy, and promote greenhouse gas reduction in all sectors, promote equitable transition to zero emission buildings, zero emission vehicles, and transportation electrification, and promote clean energy including through financing.

Additional Information:

Industrial and manufacturing sector includes: combustion by industry of coal, diesel, gasoline, heat, liquified petroleum gas, natural gas, refinery feedstocks, and residual fuel oil; cement manufacture; electric transmission and distribution equipment; iron and steel production; lime manufacture; limestone and dolomite use; ozone depleting substance substitutes; semiconductor manufacture; soda ash; and urea consumption.

Task force memberships is as follows. Nine members appointed by governor:

Three representatives from department of public health and environment, one with expertise in air quality, one with expertise in water quality, and one with expertise in health equity
One representative of the department of natural resources
One representative of the department of transportation
One representative of the state’s energy office
One representative of the public utilities commission
One representative of the department of agriculture
One representative of the governor’s office

Two members appointed by Native American tribes, one by the chair of the Southern Ute Indian Tribe and one by the Ute Mountain Ute Tribe.

Eight 12 16 members appointed by Senate president, Senate minority leader, House Speaker, and House minority leader. Each leader is to appoint one person from each of the following category: Someone who represents disproportionately impacted communities (with appointees spread across the state as much as possible) and one from an organization that carries out initiatives relating to environmental justice, represents business interests, represents worker interests, or represents interests of people of color and collectively must apppoint three members who carry out initiatives related to environmental justice, one member that represents worker interests in disproportionately impacted communities, four members representing interests of people of color, one member representing the renewable energy industry, one member representing the non-renewable energy industry, one member representing local governments in disproportionately impacted communities, and one environmental toxicologist.

Executive director must consult with advisory board, legislature, representatives of disproportionately impacted communities, and other relevant stakeholders prior to picking the ombudsperson.

The advisory board members must to the extent possible reside in different areas of the state, reflect the racial and ethnic diversity of the state, and have experience with a range of environmental issues, including air pollution, water contamination, and public health impacts.

Seven members are to be appointed by the governor, four of which must be from disproportionately impacted communities, one from an organization that represents statewide interests to advance racial justice, one from an organization that represents statewide interests to advance environmental justice, and one that represents workers in disproportionately impacted communities. Four members are to be appointed by the executive director of the department of public health and environment with no specific requirements. The executive director serves as the non-voting member of the board. Board must meet at least quarterly.

Auto-Repeal: September 2024 for task force, September 2027 for board with sunset review

Arguments For:

Bottom Line:

On the whole the hard targets in this bill merely put into state law the already existing roadmap to meet our already existing climate goals, with industry specific modifications such as recognizing that power generation is basically already on track to meet 80% of reduction by 2030 and targets and rules for industries we can actually regulate in this manner (transportation and buildings are to some degree, handled by other bills in this session)
We need to do all of this to avert climate catastrophe—current conditions in the state with massive wildfires and mega droughts are already bad enough, we cannot afford for it to get worse
Given the recent news about the state illegally granting noxious gas permits to industry, we can’t afford the informal “working with industry” stance we currently have toward these targets
For the disproportionate community section of the bill, the #1 indicator for placement of toxic facilities in this country is race. 78% of African-Americans live within 30 miles of a coal-powered plant (56% of non-Hispanic whites). Latino children are 40% more likely to die from asthma than non-Latino whites. These communities lack the power to fight back against polluters in an effective way and lack the power to get proper redress for wrongs done to their environment
On the cost of the pollutants, these are not numbers pulled out of the air, they are scientifically derived and if anything, undercount the social impact given how hard it is to decide how much blame exactly resides for things like increased natural disasters

In Further Detail: In a large sense, this is merely putting into law the state’s existing roadmap for reaching our climate goals. Power generation is being given targets it is basically already on track to meet, which are higher than the overall state targets because we’ve got trouble in other sectors. Oil and gas reductions should be helped by natural reductions in their usage due to increased clean energy use, so they should be able to meet the target. We are leaving out transportation and buildings because we cannot really regulate them in this manner. They are also the targets of other massive legislation in this session designed to drive down emissions in these sectors. And why are we doing all of this? To avert climate catastrophe. We keep piling up record highs and collecting top 5 record warmest years. We have seen increased flooding in coastal areas and more dangerous storms (how many 100 year weather events can we have in the space of a few years?) More and more extreme fires hit our state seemingly every year. Droughts last longer and are more intense. Our current climate situation is bad here in Colorado, we cannot afford for it to get much worse. So drastic and immediate action is required. The less confrontational way mentioned in Arguments Against seems to be a problem as whistleblowers just in this past month revealed that the state was illegally approving noxious gas permits for industry without performing required environmental modeling or monitoring and even worse, falsifying data to get permits through. So cooperation between the state and industry seems to be a failure we cannot afford. Waste management, including toxic waste sites, and high pollution sites tend be located in minority dominated and poor areas (since the better connected and wealthy don’t want them in theirs). The number one indicator for placement of toxic facilities in this country is race and 78% of African-Americans live within 30 miles of a coal-powered plant (56% of non-Hispanic whites). Latino children are 40% more likely to die from asthma than non-Latino whites. The high profile national examples like the water in Flint actually pale in comparison to daily damage being done in many communities, including in Colorado, including something as simple as where the highways run (through poor and minority based communities) and therefore higher air pollution from vehicles. These communities lack the power to fight back against polluters in an effective way and lack the power to get proper redress for wrongs done to their environment. This bill provides them with a seat at the table when decisions affecting the air quality in their communities are being made, in addition to getting some more concrete recommendations on actions we can take to ensure decisions made at the state agency level are taking these impacts into account as well as ensuring we have the definition of disproportionately impacted communities correct. On the cost of pollutants, this is not a figure pulled out of the air. It is based on years of scientific and economic research, input from scientists and agencies around the world, and grounded in actual data. Is the absolute perfectly correct number? Of course not, but it is a very good estimate of the societal cost we bear for every ton of pollution spewed into our atmosphere. If anything, it may be conservative given the difficulty of assigning the exact blame for increased natural disasters like wildfires to tons of pollution. As for the state's energy office, yes, we want a future free of oil and gas pollution. It is a neccessity in fact. There is a huge transition involved and the office has a role to play there, but the time is long past for propping up the oil and gas industry.

Arguments Against:

Bottom Line:

The achievements in our power sector point the way: no hard cap and yet we have an industry poised to greatly overperform our reduction goal. Through legal requirements at times yes, but never a hard cap on emissions
Illegal activity by state employees isn’t fixed by new laws it is fixed by getting rid of the employees
Social value costs of pollutants is not an exact science and the Trump administration was using much lower costs
We seem to be potentially conflating two things here. It may be true that most disproportionately impacted communities are indeed low-income or minority communities but it is not necessarily so nor is it necessarily so that all low-income or minority communities are disproportionately impacted
We must not simply dump the state's massively important oil and gas industry, as the bill wants the state energy office to do. About 1/4 of our energy comes from natural gas, and we are home to the 2nd largest reserve of natural gas in North America and we are 7th in oil production in the country

In Further Detail: Note what we’ve achieved in the power sector to this point: they are on track to hit 80% reductions by 2030, way ahead of our legal overall emissions reductions requirements. Achieved in large part through working with the industry, although some of it has been spurred on by new laws. But at no point did we institute a hard cap on emissions. We can achieve similar results in other industries. As for the alleged illegal actions of state regulators with noxious gas permits, the key word here is illegal. The problem is with that state agency and its personnel, so passing new laws isn’t going to solve it. It just would provide more laws for people to break. The social value cost placed on these pollutants is also not as precise as we might want to credit. Yes it is the work of years with the input of many, but it is in the end an estimate. The Trump administration junked the working group that was to provide an updated cost and was using much lower interim costs. The oil and gas industry is a prime economic driver in this state, not only in terms of direct employment and supported jobs but also in terms of property and severance taxes helping fund state schools and water. These are good paying jobs that help lower household energy costs. We are 6th in natural gas production and 7th in oil production in the US. So the state's energy office should not ditch all support of this vital industry and focus on driving it out of the state. We seem to be potentially conflating two things here. It may be true that most disproportionately impacted communities are indeed low-income or minority communities but it is not necessarily so nor is it necessarily so that all low-income or minority communities are disproportionately impacted. It is true that one of the roles of the task force is to examine this definition, but it awfully important because it determines where the power this bill is attempting to create resides. It would seem to make more sense to use a data-driven approach of actual environmental impacts to determine these communities, rather than shorthands of income and race.

HB21-1286 Energy Performance For Buildings (Priola (R), Pettersen (D)) [Kipp (D), A. Valdez (D)]

PASSED

AMENDED: Significant

Appropriation: None
Fiscal Impact: Lose about $500,000 a year at full implementation

Goal:

To create energy performance standards for most large buildings where they must reduce their energy usage over time or face fines. This involves reporting annual energy usage to the state then measuring improvement every five years. The bill sets initial improvement standards and then directs the state to adapt them as necessary requires the air quality commission to create rules after a stakeholder process in order to achieve a 7% reduction by 2026 and a 20% reduction by 2031 compared to 2021. State is to keep all energy data in a publicly accessible database.

Description:

Requires the state to implement energy performance standards for large buildings (more than 50,000 square feet of gross floor area, with some exceptions, see below) that go into effect in 2026. A task force is created to meet beginning this year to help guide creation of these standards. A 2/3 vote of the task force is needed to endorse recommendations The air quality commission is to use the task force's recommendations to create rules which will achieve reduction of 7% of greenhouse gas emissions by 2026 compares to 2021 and These must be designed so as to achieve in aggregate a 20% energy and greenhouse gas reduction in emissions by 2031 compared to 2021. Set of rules for achieving 2026 goals must be created by commission by May 2023. Every year until 2047 As necessary the commission must modify rules so as to keep up with the state’s greenhouse gas reduction targets for 2050. These reductions must not include savings from system-wide decarbonization of electricity or natural gas grids. The rules must not unduly burden high-performance buildings, tenant-owned multi-family residences, residential buildings primarily used to house low-income households, properties built before 1950 that have been designated historic properties, or buildings owned by a local government.

To achieve this, qualified buildings must report their annual energy usage to the state and the state must then every five years hold the buildings to performance standards based on a baseline of 5 years ago (so the first baseline is 2021, then in 2031 we compare to 2026, etc.) This must include meeting at least one of the following standards: an Energy Star score of 75 or higher (scale is 1-100) or a score at least 15 points higher than the building’s most recent baseline year; weather-normalized energy use reduced by 15% compared to the baseline year; energy-use intensity (energy used per square foot) met or surpassed state targets for that sector and climate target (or if such targets have not yet been set, met 25% percentile of national standard targets; or in mixed-use buildings, that the overall building met the energy-use intensity targets. If the building can demonstrate that for at least four of the previous five years it got more than 50% of its energy from renewable sources, the standards are relaxed to 65 Energy Star score or 10 points higher than baseline, a 10% reduction in energy use, or just being within 10% of the intensity targets.

In 2027 the air quality commission must examine these requirements and modify them as necessary to achieve the 2031 targets. Anyone who violates any of the reporting rules (see below) is subject to a civil fine of $500 for the first violation and up to $2,000 for each subsequent violation. Anyone who misses their energy targets is subject to a civil fine to be determined by commission of up to $2,000 for the first violation and up to $5,000 for each subsequent violation. Repeat violators also get fined $0.02 per square foot per day that the violation continues. Government owned buildings are exempt from fines, as are schools. Fines go to the climate change mitigation and adaption fund created by this bill. This fund is run by the state energy office and it can use it to finance and administer programs and policies to mitigate or adapt to climate change in the state (there are bunch that already exist).

Building owners can substitute a year within two years before or after the baseline year (so could do anywhere from 2019-2023 for the first baseline for instance). Owners of multiple buildings on a campus can submit just one set of figures for the entire campus if the buildings are part of a master meter group without submetering or it is a correctional facility or a institution of higher education.

There are several exceptions to 50,000 square foot rule. Storage facilities; airplane hangers; stand-alone parking garages that lack heating and cooling; buildings where more than half of the gross floor area is used for manufacturing, industrial, or agricultural purposes; biomedical research labs; and single-family, duplex, or triplex homes are all exempt.

Buildings can also get waivers for financial hardship for individual year reporting (this is just reporting its data, see below for more detail on this process). To qualify, one of the following conditions must be met: property has been on a government annual lien tax sale list within the previous two years, property is an asset subjected to a court-appointed receiver that actually controls it; property is owned by a financial institution due to default by a borrower; property was acquired by a deed in lieu of foreclosure; property is subject to a notice of default, or due to a disaster declaration by the governor, the property generated annual rental income or revenue that was 60% or less in at least two years out of previous five than the five-year average prior to the disaster declaration. Additionally waivers can be given for individual years if the building was unoccupied for at least 30 days, a demolition permit was issued for the entire building, or the building owner cannot get the energy data needed due to tenant refusal (see Additional Information for more detail on this).

A building can get a waiver from needing to meet performance standards if it got reporting waivers in at least two of the five previous years, if it is a tenant-owned multi-family residential building, if at least 80% 66% of the tenants have a household income of less than 80% of median area income, or two more complicated cases. The first is if the building has been designated a historic building and was built before 1950. In this case the owner must submit proof that they cannot perform any additional energy efficiency upgrades due to the historic designation and that the building was either commissioned or recommissioned as historic since the most recent baseline year (so 2021 would be the first one) in accordance with national standards. The other more complex case is if the owner can prove the building was constructed to meet or surpass one of the following efficiency levels: one of the two most recent editions of the International Code Council, the national energy standards for the building type (either low-rise residential or not). Also for buildings owned by the state, the covered owner only needs to comply with the performance requirements if they have commenced work on a construction or renovation project that costs at least $500,000 and impacts at least 25% of the building's square footage.

Buildings can also get time extensions on their annual report if the owner can prove the failure or refusal of their utility or tenant made it impossible to make the deadline. Time extensions for the performance standards can be given if the primary function of the building changed since the previous year, the building changed ownership since the most recent baseline year (2021 at first), or if the benchmarking tool (see below) went through a large-scale recalibration making the Energy Score comparison impossible.

After June 2029 and before June 2030 the state must consider lowering the 50,000 square foot threshold.

In order to get the data, by the start of June 2022 utilities must set an aggregation threshold for which it can lump multiple customers in the same building together to provide the building owner with usage data without requiring individual customer consent. The threshold must be at the most 4 customers. Utilities must then provide this aggregated data to building owners through an easily navigable portal on their website or via online request using up-to-date standards for digital authentication within 30 days of request by the building owner.

These building owners must use the Energy Star Portfolio Manager benchmarking tool, and utilities must provide the data in a format that can be uploaded into the tool. The building owner must then use this tool to submit their report of their data for the year before June 1 of the subsequent year.

The state is to then take the submitted data and create a database and map. Both must be publicly accessible. The database must include annual data for covered buildings and must not include any contact information that is not publicly available. Each qualified building must pay an annual fee of $100 to fund this. Local governments are exempt from the fee.

Anytime a qualified building is put up for sale or any portion is put up for lease, the owners must include a copy of the data from the previous calendar year to any prospective buyers or leasers, any brokers who enquire about it, and any major commercial real estate listing services. Those listing services must include the Energy Star score, if it is in the report, and the energy-use intensity on the listing.

Additional Information:

Data submitted must include: physical description of the building, its name, primary uses, gross floor area, years of Energy Star certification and most recent date of certification (if applicable), energy star score (if available), monthly energy use by fuel type, site and source use intensity (energy per square foot), weather-normalized site and source use intensity, annual maximum electricity demand in kilowatts, monthly peak electricity demand (if available), and greenhouse gas emissions including indirect and direct emissions.

For buildings where the utility aggregation threshold is not met, individual consent must be obtained in written or electronic form, can be in the lease document itself, and is valid until revoked by the customer. Utilities with less than 5,000 customers do not have to comply with this bill.

If a building changes ownership, part of the deal must be transfer of all energy use data from the past, customer consent documentation, and any other information needed to meet the requirements of this bill.

The bill does not restrict the ability for any utility to provide incentives or other energy efficiency programs for qualified buildings or the ability for an investor-owned utility to take credit for energy or greenhouse gas emissions savings from these buildings. Local governments may also impose more strict requirements.

All business owners must use the automated data checking tool in the benchmark tool before submitting their data to the state.

National standards for building codes come from the American National Standards Institute (ANSI), the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) and the Illuminating Engineering Society (IES) or their successor organizations.

Task force must make recommendations related to: workplace availability and development related to building energy performance; financial and non-financial costs and benefits of upgraded building energy performance; availability of programs, technical assistance, and incentives to support building owners, utilities and local governments; opportunities to improve commercial building energy use; and future actions the state should take to implement the standards modifications to the standards that would lower emissions. Task force expires in July 2025.

Task force is to consist of 12 14 18 members: director of the state's energy office (who also appoints all appointees), director of environmental programs in the department of public health and environment, one two owners of a commerical building and one owner of a multi-family residential building, one member who is a building systems operator, one member who represents an affordable housing organziation two people with direct experience with or members of organizations that represent mechanical or plumbing or electrical work, two one two person representing design professionals or building engineers or construction organizers or building contractors or developers, two members of environmental conservation or environmental justice organizations with experience in energy efficiency or the built environment, one member representing an electric utility, gas utility, or combined utility, two members with relevant building performance expertise, one member from a local goverment that has recently enacted a benchmarking or building energy performance standard, and one member from a local government who has not enacted such standards.

Auto-Repeal: July 2025 for task force

Arguments For:

Bottom Line:

Buildings are currently our third largest source of greenhouse gas emissions and on track to move into second by 2025—if we are going to meet our climate reduction goals we must sharply reduce energy consumption in buildings and especially larger ones
Only the building owners can make the changes required to make them energy efficient but the good news is that there are a bunch of different state, federal, and utility programs out there to help pay for the changes (in part or even in full)
Energy efficiency results in financial savings for the building owners over the long-term, so to the extent they are forced to do anything it is to potentially spend very little money so as to save large amounts of money in the future
We need to do all of this to avert climate catastrophe—current conditions in the state with massive wildfires and mega droughts are already bad enough, we cannot afford for it to get worse

In Further Detail: Buildings represent the final piece of the puzzle in our battle against greenhouse gas emissions and climate change. Oil and gas emissions, transportation emissions, and power generation emissions are all covered by different efforts but there is no statewide mandate to cut down on emissions from buildings. And buildings of all sorts (so including smaller buildings and houses not covered by this bill) are the third largest source of emissions in the state. By 2025 it is projected they will become the 2^nd largest (after transportation, with power generation declining sharply). Oil and gas production emissions are a distant 4^th. To meet our climate goals we are going to need massive reductions in energy usage in this area. Large buildings represent an understandably large part of this problem, but they are somewhat unique in that generally the owners of the building don’t occupy it and so the direct users cannot do much other than adjust their thermostats (and sometimes not even that). So it is on the building owners to make the changes necessary to meet our goals (and to be clear: these goals aren’t crazy and don’t require technology that doesn’t exist). And quite frankly there are a lot of state and federal programs to help building owners do this either for free or for extremely reduced costs. Many public utilities offer programs of their own. Some businesses pay for improvements through performance contracting with energy service companies that leverage future savings via energy efficiency. And that word savings is real important too. Becoming more energy efficient in the long run saves money. We are well past the point where upgrades needed for energy efficiency are extremely costly, even if for some reason you end up paying for it yourself. The bottom line: the time for excuses is over. So yes, these buildings will be “forced” into becoming more energy efficient (possibly at extremely reduced cost) and then reap the savings from these efficiencies for years to come. And why are we doing all of this? To avert climate catastrophe. We keep piling up record highs and collecting top 5 record warmest years. We have seen increased flooding in coastal areas and more dangerous storms (how many 100 year weather events can we have in the space of a few years?) More and more extreme fires hit our state seemingly every year. Droughts last longer and are more intense. Our current climate situation is bad here in Colorado, we cannot afford for it to get much worse. So drastic and immediate action is required. The change to bill is basically to pull out the regulator regime the bill creates and instead defer to the air quality commission to create the exact rules. Targets remain the same and the commission is required to create the rules, the bill now just more properly defers to the commission when it comes to exact structure of the plan.

Arguments Against:

Bottom Line:

Hard caps with big potential fines are not the way here, we should instead do a better job of publicizing existing programs to help building owners see the economic savings
The bill wants to put energy usage out in the public eye and also, in some situations, expose individual tenant energy usage to building owners
This is also a particularly bad time for many of these owners as a lot of the businesses that went remote during the pandemic aren’t going to come back. The bill’s exclusion provision related to the pandemic may not cover what could take a decade to sort out
Building owners in some cases have limited control on tenant energy usage
All of this means we should be incentivizing buildings to go green and leave it at that, don’t worry about individual building energy usage just worry about if the building itself is energy efficient and uses renewable energy where possible

In Further Detail: Hard caps with potentially heavy fines for violators (the per day violations could add up for a big building) are not the way to go here. We’ve gotten this far in sectors like power generation through working with the industry and the same can be true of large buildings. Let’s do a better job of promoting existing programs (and those coming online) to these owners to help them see the economic savings in action. The alternative that this bill proposes is a pretty big invasion of privacy on multiple levels: tenant in non-aggregated situations and the building owners themselves. We are going to take their annual energy usage and dump it out in public for everyone to see. Then if they don’t meet our hard caps for improvement we are going to fine them like crazy until they do. This is all, by the way, coming in a time where we may see serious financial difficulties for these buildings as many businesses that went remote due to the pandemic decide not to come back. That may have a much longer effect on finances than the bill envisions, long after the disaster declaration (the only way to use reduced income to get out of this requirement) is over. We could be looking at a serious glut of office space for a decade. And in many cases, as Arguments For obliquely points out, owners don’t have control over one of the biggest sources of potential problems in an office: the thermostat. When tenants can decide they need it to be 66 degrees on hot summer days or 75 degrees on cold winter ones, that can make a huge difference versus keeping it 70 all the time. Tenants also have varying electricity needs and routinely evade things like space heater bans that can eat up electricity. All of this is to say, we should punish owners for some things that are beyond their control. If we can get buildings to install energy efficient appliances, do energy efficient upgrades to their buildings (like windows for instance), and use renewable energy where possible, that should be enough without getting into precisely how much energy each building is using. And it can be done without the draconian measures the bill envisions.

HB21-1289 Funding For Broadband Deployment (Bridges (D), Priola (R)) [Kennedy (D), Baisley (R)]

PASSED

AMENDED: Moderate

Appropriation: $75 million in federal stimulus money
Fiscal Impact: None beyond appropriation

Goal:

Spend $75 million of state federal stimulus funds on broadband deployment through the state. $35 million through a stimulus grant program to be run by the existing broadband deployment board through their existing grant requirements, $35 million to go to Native American tribes and telehealth needs and be run by the new Colorado Broadband Office the bill creates, and $5 million to local communities for regional interconnectivity. The new broadband office is to serve as the state’s central hub for broadband deployment.

Description:

Creates the Colorado Broadband Office in the office of information technology. The office is to serve as the state’s central broadband deployment coordinating entity and create and implement a plan to encourage cost-effective broadband and increase broadband use in the state. This plan must be submitted to the legislature and the governor and publicly posted online. The office must also provide technical assistance to broadband service government grantees, collect broadband data to create and update service maps throughout the state, encourage public-private partnerships, and seek gifts, grants (including federal grants), and donations.

The bill creates the broadband stimulus grant program which in essence provides extra money to the existing broadband deployment board, which awards grants to help bring broadband internet access to communities that do not have it. Currently all grants are required to have at least 25% private funding of the project. But a different bill in this session would allow the board to waive that rule for critically underserved areas so long as the board is selecting the grant with the highest amount of private funding for the area. The bill appropriates $35 million in federal stimulus money to this stimulus grant program which the board is encouraged to prioritize for applicants in the previous five years who were denied a grant due to lack of available money but still qualify for the grant. Any previous grant applicants must include information that any easements needed for the project are in place (so that construction can commence immediately upon grant approval) and proof that the project would provide broadband access to low-income customers at a reduced cost. Grants must conform to the requirements of the federal stimulus act (which has specific broadband infrastructure requirements) which include reliably meeting or exceeding 100 mbs upload and download speeds. In places where this is not practicable due to excessive cost or geography, must have 100 mbs download speed and 20 mbs upload speed and be scalable in the future to the 100 up and down requirement. State must report to the legislature by January 2022 and then every six months after until all of the $35 million is spent. This grant program expires in September 2023.

The bill creates another grant program for the broadband deployment board to consult on (but is run by the department of local affairs), called the interconnectivity grant program. This program awards grants to local governments for projects that: engage in regional planning among multiple local governments to identify needs, determine optimal infrastructure configurations, and identify public-private partnerships; or provide or enhance the network connection between communities. This includes connections between what the bill calls community anchor institutions, which are schools, libraries, hospitals, law enforcement and other public safety organizations, and support organizations that facilitate greater broadband use in the community. Any non-Native American tribe grantee cannot use the funds for last mile infrastructure (hooking up end users). Grants must conform to the requirements of the federal stimulus act (which has specific broadband infrastructure requirements) which include reliably meeting or exceeding 100 mbs upload and download speeds. In places where this is not practicable due to excessive cost or geography, must have 100 mbs download speed and 20 mbs upload speed and be scalable in the future to the 100 up and down requirement.The bill appropriates $5 million in federal stimulus money for this program. State must report to the legislature by January 2022 and then every six months thereafter so long as the program has awarded a grant in that timeframe. This program does not expire.

The bill also creates the digital inclusion grant program which although it is given broader directives of increasing broadband usage, speed, reliability, and affordability throughout the state, is appropriated $20 million specifically for use by Native American tribes only for both deploying broadband infrastructure on tribal lands and providing devices, and $15 million to one or more providers of telehealth services. All money must be spent in the next year. All $35 million is federal stimulus money. The broadband office is to run this program and is encouraged to consult with the state’s office of economic development, departments of local affairs, regulatory agencies, and transportation, and any other relevant agencies, organizations, or individuals with broadband expertise. Grants that go to non-Native American tribes cannot be used for last mile infrastructure (hooking up end users). Grants must conform to the requirements of the federal stimulus act (which has specific broadband infrastructure requirements) which include reliably meeting or exceeding 100 mbs upload and download speeds. In places where this is not practicable due to excessive cost or geography, must have 100 mbs download speed and 20 mbs upload speed and be scalable in the future to the 100 up and down requirement. State must report to legislature by January 2022 and then every six months after if they distribute any other grants after January 2022. The program does not expire.

The plan created by the broadband office must consider partnerships between communities, local governments, Native American tribes, non-profits, electric utilities (including coops), rural telecommunications providers, and public and private entities; funding opportunities that allow for coordination of public funding (including federal funding) with private funding; barriers to deployment, adoption, and utilization of broadband including affordability; and statewide goals for broadband, including if service definitions (like how fast the connection is) need to be updated to keep up with evolving technology.

The office’s director is appointed by the state’s chief information officer and the director may hire staff as needed.

The office of information technology (which houses the new broadband office) must also enter into an enterprise agreement with a third-party vendor to develop and implement a strategic plan to expand and improve digital access to government services through broadband. Vendor must consult with government agencies, state residents, groups representing marginalized communities, statewide Internet portal authority, and local government officials. Report due to legislature by July 2022 on plan and implementation.

Additional Information:

For each of the three grant programs, the reporting requirements are very similar. A description of each grant award, including progress made and estimated completion time, map of the area to be served, percentage of customers who activated broadband through the project and the speeds available to them, type of technology used for the project, and number of households, community anchor institutions, municipalities, and counties served by the project; number of applicants to the grant program, amount request by each applicant, number of grants awarded, and amount of each grant; and amount of money expended from the fund and the amount left.

Auto-Repeal: September 2023 for stimulus grant program

Arguments For:

Bottom Line:

It has never been more clear how essential broadband internet access is to life and business in Colorado
We still have 13% of the state without access to reliable broadband internet
Nationwide barely 60% of people on tribal lands even have access to broadband and even fewer can use it: more than 30% of Native households rely on cellphones for all Internet access
Telehealth has become a critical aspect of health care in the state, particularly in rural areas
We cannot build out most of this infrastructure without private partners but they don’t want to do it for valid business reasons (but they are happy to serve homes if the infrastructure is there). That’s where all of these grant programs come in
We need the centralized hub this bill creates rather than essentially volunteer boards for this essential service and in the future we may need to upgrade infrastructure to keep up with technology

In Further Detail: The pandemic has driven home the fact that broadband internet access is a requirement for full participation in modern life. This would be true without COVID, telehealth, for instance, is critical to rural areas even in normal times but cannot function with broadband internet access. Businesses cannot function with broadband. And it does matter that so much of our life has moved online that just being able to happily experience life in 2021 is pretty hard to do without broadband, with or without the pandemic. 13% of the state remains without this critical service, but in fact we’ve made great progress in part through the exact program this bill provides the stimulus grant fund to. In 2015, it was 41% of the state. The gap the program fills is that by law the infrastructure to build broadband services can only be done by private providers and these providers don’t want to do it for valid businesses reasons. It is not an attractive proposition to build out all of the costly infrastructure for the more meager service returns. But if we can help get that infrastructure built, then the company can happily service it. But we also recognize that there are two critical areas of additional need here. The first is Native American tribal lands. Nationwide, barely 60% of people on tribal lands have access to broadband (compare that to our 87% statewide figure), and that overstates the case because access doesn’t mean affordable access or even having the computers to use the Internet. More than 30% of Native households rely on cellphones for all of their Internet access, according to a 2019 survey. So the bill sets aside a large amount of money to improve infrastructure and end user ability to actually access that infrastructure without the funding requirements of the existing broadband grant program (or need to compete with other areas of the state). And then there is telehealth, which of course has become a necessity in the pandemic but is here to stay, particularly in rural areas of the state. Finally, the bill recognizes that we can gain some efficiencies through interconnectivity of local areas together, and awards a smaller amount of grants to that purpose. As for the creation of the broadband office and accumulation of resources there, a critical need like this needs a central hub and we frankly don’t have that right now. The broadband deployment board serves its function, but its function is narrow and in essence volunteer work. That doesn’t cut it for a critical service need, in particular because we have likely already swept up the low-hanging fruit when it comes to connecting the state. The remaining 13% is likely to be the hardest. And then we have to consider the future. What is considered acceptable service right now may be obsolete in 10 years and then we have to upgrade all of this infrastructure. So in all, spending this large amount of state federal stimulus money is a great investment in the future of our state.

Arguments Against:

Bottom Line:

We already have an existing fund stream for grants for the broadband board for basically the exact purpose of this bill, which awards around $8 million a year. We’ve seen steady progress from this work to get up to that 87% mark and lack of progress in the last year may be more due to COVID than anything else
So we may be able to just leave things alone and get near our 100% goal without this massive funding injection and focus more on Native American tribal needs for end users with a smaller amount of money
This is important because $75 million is a big chunk of the state stimulus to spend and many other critical areas aren’t getting this much: our state water plan, relief programs for the unemployed and businesses, and mental and behavioral health needs. Spending more like $30 million here (which is still a huge number) and spreading the other $45 million around in other places may be a better use of our state stimulus money

In Further Detail: The broadband board we are giving $35 million to here has an existing fund stream (it’s the high cost support mechanism surcharge on your phone bill). Since 2016 it has awarded $41 million in grants thanks to that funding mechanism, around $8 million a year. The work we are doing has seen steady progress, COVID may be to blame for some of the lack of progress in the last year. So it is premature to think we are anywhere near stuck at the 87% mark and that simply leaving the program to keep working as it is (with perhaps a few tweaks as another bill in this session does) would not bring us near that 100% goal within a year or two simply if we just leave things alone. That means no new state office (and its associated expenses), no new requirement to create new broadband plans, and perhaps not needing to spend quite this much on Native American tribal needs and instead focus on the end user computing needs. Telehealth is much the same, if we build the infrastructure in the area, then we don’t need to worry specifically about telehealth. The reason this is important is that we are spending a massive amount of our state stimulus funds in this one bill, 9%. One of the highest numbers of any single area except perhaps for transportation. And we’ve seen in many of the other state stimulus bills the idea that this is great, but really we could use some extra money here. The state water plan, relief programs for unemployed and businesses, mental and behavioral health capacity, all of these areas are getting state stimulus funds and for pretty much each one of these bills if you go look at the Arguments Against section you will see a complaint that not enough money is being spent. So instead of spending $75 million on broadband deployment, what if we spent $30 million, targeted quite a bit still at Native American tribes, and took the other $45 and spread it around a bit more?

Bottom Line:

The anti-competitive law that only allows private companies to manage this infrastructure is the root of the issue. If broadband is essential, then we need to have more government control here to ensure everyone gets it—like the mail

Bottom Line:

Where you live is a choice. People chose to live in rural areas for various reasons and with that choice comes some downsides, just like living anywhere. We should not be subsidizing that choice to mitigate the downsides with government tax dollars

HB21-1298 Expand Firearm Transfer Background Check Requirements (Gonzales (D), Pettersen (D)) [Amabile (D), Woodrow (D)]

PASSED

Appropriation: None
Fiscal Impact: None

Goal:

Ban the sale of firearms to anyone convicted in the past five years of a series of violent or harassment related or gun law related misdemeanors. Remove the requirement that a gun be handed over after three days even if the background check is not yet complete. Give the state more time to deal with appeals of background check denials and remove requirement gun be handed over if state cannot obtain disposition of a case that is no longer pending.

Description:

Bans the sale of firearms to anyone convicted, in the past five years, of the following misdemeanors: third degree assault, menacing, sexual assault, unlawful sexual contact, child abuse, violation of a protective order, crime against an at-risk person, harassment, bias-motivated crime (hate crime), cruelty to animals, possession of an illegal weapon, or unlawfully providing a firearm to a juvenile. This would come up on the required background check so the denial would come from state law enforcement.

The bill also requires that any background check be complete prior to transferring a gun to a purchaser. Right now if three days have elapsed since the check was requested, the gun can be handed over. The bill also expands the amount of time the state has to respond to appeals of background check decisions from 30 days to 60 days and removes the requirement that the gun be handed over if the state cannot obtain the final disposition of a case that is no longer pending (which is holding up the background check).

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Nothing in this bill is novel, multiple other states have similar post-conviction bans for similar misdemeanor crimes and of course you already cannot buy a gun if convicted of a felony or domestic violence (the latter also requires you to give up the guns you own, which this bill does not)
The King Soopers shooter would not have been able to purchase his weapons if this bill had been in place
The bill also eliminates the Charleston loophole, which is current law that says if the background check isn’t done after three days you get the gun anyway while it continues. That is how the shooter in Charleston who failed his background check got the gun and killed 9 people with it in a church in 2015. Check didn’t finish within 3 days (vast majority actually finish within minutes but not always)
In 2018 there were 3,960 such cases nationwide which included 850 cases of domestic violence. If we believe that background checks are an important step to keeping guns out of the hands of people who should not have them (and mega-majorities of Americans do), then a 3 day time limit is ridiculous and potentially deadly

In Further Detail: First, it is very important to note that this it not novel. Multiple other states have similar post-conviction bans and it is already a state requirement that you give up your guns if convicted of domestic violence and you cannot buy more (note that this law does not require anyone to give up any guns they already own), and anyone convicted of a felony offense already cannot buy a gun under federal law (these crimes here are all misdemeanors). So there is well-established legal precedent for saying certain people cannot buy guns. That is in fact the entire point of background checks. And let’s also be clear: the King Soopers shooter would have failed his background check if this bill had been law. He had an assault charge within the past five years. All of these listed crimes are crimes of violence and they are crimes that tend to be associated with mass shooters when we look at their history after the fact. This all comes back to what we always hear in the wake of mass shootings: if we could just keep the guns out the hands of the wrong people we’d be OK. And that is why universal background checks enjoy mega-majority support in this country. The rest of the bill is basically about eliminating loopholes that evade background checks, in particular the Charleston loophole. The shooter at the church in Charleston in 2015 was actually ineligible to buy a gun. But his background check didn’t get resolved within three days and the result was nine dead Americans. And it’s not just this particular incident. In 2018 there were 3,960 such cases nationwide (what happens in these cases is the federal government then has to try to retrieve the gun). 850 of those cases involved a buyer who should have been prohibited due to a domestic violence conviction, which we know is one of the most dangerous situations to give someone a gun. The idea that we are so concerned with who buys guns that we say we have to do a complete background check but at the same time if three days pass, too bad here’s the gun, is ridiculous. It is also worth mentioning the vast majority of background checks resolve within a matter of minutes, so they are not at all burdensome in the vast majority of cases. On the mental health front, the idea that you are going to treat everyone with a mental illness to the degree that the number of mass shootings and suicides in the country are drastically reduced is probably a bigger stretch than simply reducing the availability of guns. All comparable nations in the world have mental health issues (Canada, Europe, etc.) but only in this country do we have an epidemic of mass shootings.

Arguments Against:

Bottom Line:

No one should be denied their constitutional right to buy a gun over this list of misdemeanors. That last word is critical, many of these crimes have felony counterparts (which are of course already grounds for failing a background check) but under this bill a conviction for a fist fight will ban you from owning a gun for five years
We should not be creating a law just to say we could have prevented the Boulder King Soopers shooting from occurring, because we will never be able to construct a legal framework around denying someone the ability to purchase a gun without also denying a whole lot of other people who have no intention of committing any crime with the weapon. There will always be some other thing so we need to address the other side of this problem: mental illness
For the other part of the bill, the state should not be able to hold up a gun purchase indefinitely, there has to be some sort of limit. As the bill is written that background check could take 100 days and someone could still be without the gun they purchased. Remember: someone may be trying to buy a gun to protect themselves

In Further Detail: We should not be extending bans to these misdemeanors. When we think about the seriousness of a crime, felony and misdemeanor are a bright dividing line for a reason. Note that many of the things on here like assault, child abuse, and sexual assault have felony counterparts. What we are in essence saying here is that getting into a fight is a reason to deny someone from owning a gun for five years. That is far too draconian and too much of a rush to fit the Boulder King Soopers case into some law so we can turn around and say we fixed it. The sad truth is that we are never going to construct the perfect legal rationale for denying someone the ability to purchase a gun without also denying a whole lot of other people who have no intention of committing any crime with the weapon. As we are a nation with constitutionally protected gun ownership rights, that means the solution lies in treating the mental illness that lies behind nearly all mass shooters (and suicide attempts for that matter). As for the so-called Charleston loophole, the reason for the three-day period is that background checks are not supposed to take that long and in some cases someone is trying to buy a weapon to protect themselves. If the check still hasn’t resolved after 10 days or 20 days or 50 days, the bill would still prevent that person from exercising their 2^nd amendment rights. So perhaps we do need a little more care to prevent situations like Charleston but there has to be some sort of limit.

HB21-1311 Income Tax (Hansen (D), Moreno (D)) [Sirota (D), Weissman (D)]

PASSED

AMENDED: Moderate

Appropriation: $68,041
Fiscal Impact: $13 million to the state this year, $63.2 million next, $104.9 the year after, with slightly increasing net positive impact into the future

Goal:

Make multiple changes to personal tax laws (and some related to business tax collection) as well as expand the earned income tax credit and create a state-level child tax credit, with a net of $13 $13.2 million to the state this year, $63.2 $39.5 million next, and $104.9 $57.2 million the year after. The earned income tax credit is expanded from 15% to 20% , with a temporary boost to 25% in 2023-25, and the new child credit amounts depend on if the new temporary federal child credit laws are made permanent. The rough range will be $180 to $1,200 per child depending on income, with a cap at $60,000 of income for individuals and $85,000 for couples. New revenues come from capping itemized expense deductions for those earning more than $400,000 at $30,000 for individuals and $60,000 for couples, eliminating the capital gains tax exemption, making the change last year that reset pass-through deductions for certain business to individual tax returns back at 2016 levels permanent (federal law that this is based on changed in 2017), capping 529 plan tax deductions at $15,000 $20,000 for individuals and $30,000 for couples, removing a temporary business lunch tax deduction (again a federal change that only is for this year), and changing how complicated business structures must consider if they are liable for Colorado taxes (in favor of making them more liable).

Description:

The bill nets out to $13 $13.3 million this year, $63.2 $39.5 million next year, and $104.9 $57.2 million in 2023-24 in added revenue to the state.

First we’ll discuss the decreases to state revenue through new or expanded tax credits. This will cost the state $81.1 million this year, $163.3 $187.8 million next year, and $164.5 $213.5 million in 2023-24.

Increases the earned income tax credit from 15% to 20% of the federal earned income tax credit with a temporary increase up to 25% from 2023-25 before it goes back to 20% in 2026. The EITC is available to taxpayers with incomes falling below certain thresholds. In 2021 those are $15,980 (single) or $21,920 (couple) with zero children, $42,158 or $48,108 with one child, $47,915 or $53,865 with two, and $51,464 or $57,414 with three or more. Benefits also range depending on number of children, ranging from $543 to $6,728. The Colorado portion of this is a percentage of that benefit, so right now it is $81.45 to $1,009.20, this bill increases it to $108.6 to $1,345.6. This will cost $24.2 million this year, $48.7 $73.2 million next year, and $48.9 $97.9 million in 2023-24. When the credit returns to 20% the full year fiscal impact will be more like $50-$55 million a year.

The Colorado version of the federal child tax credit was enacted with the provision that it could only become active if Congress passed legislation allowing states to collect sales tax on sales made out of the state. This bill repeals that requirement and makes the tax credit active. The federal child tax credit is available to people filing jointly at under $400,000 or singly at $200,000 but the state credit only available at $75,000 (single) or $85,000 (couple). It was $2,000 per child under 17 in federal law but has temporarily been raised to $3,600 for children under six, which for the state, is the only age we care about because this bill only applies to children under 6. If the total credit is more than what the taxpayer owes they could take a refundable credit of $1,400 per child (the $2,000 is not refundable, so you don’t get money back if you zero out your taxes) in federal law until this year but now the amount is fully refundable, so you get it all regardless. This is temporary, and the reason the old rules are important is that the bill is written so that if these new standards become permanent, the state percentages are reduced. For now, the Colorado version of this is 30% of the federal credit for the lowest income bracket (under $25,000 for single filers and $35,000 for joint filers), 15% of the federal credit for the middle bracket ($25,000 to $50,000 for singles and $35,000 to $60,000 for joint), and 5% of the highest bracket ($50,000 to $75,000 for singles and $60,000 to $85,000 for joint). So that’s $1,080, $540, and $180 per child. If the changes in the federal law do not become permanent and we go back to $2,000, then the percentages in the bill double to 60%, 30%, and 10% ($1,200, $600, and $200). This will cost the state $53.4 million this year, $107.4 million next year, and $107.9 million in 2023-24. That is assuming the federal child tax credit increase is temporary, so it uses the higher numbers per child.

There are two more smaller decreases to state revenue. The first is a change to social security deductions. Right now taxpayers are capped in how much they can deduct from their social security income at $20,000 from age 55 to 64 and $24,000 for those 65 and older. The bill removes these caps. This would cost $3.4 million this year, $7 million next year, and $7.4 million in 2023-24. The other change is a new temporary income tax credit to businesses that convert to employee ownership (either a worker owned co-op, an employee stock ownership plan, or an employee ownership trust). This credit is equal to 50% of the costs of the conversion with a cap of $25,000 unless conversion is made to a stock ownership plan in which case the cap is $100,000. This will cost the state $100,000 this year, $200,000 next year, and $300,000 in 2023-24. The bill sets a maximum single year cap of $10 million for these credits and does allow taxpayers to “reserve” their credit (obviously they must later prove they deserve it). Otherwise it is first-come, first-serve. The credit is fully refundable (so again, if the business has less income than the tax credit, they get paid the difference in a refund). State is required to conduct statewide outreach efforts to minority owned businesses about this tax credit. Credit repeals in 2033.

Next we’ll discuss the increases to state revenue through removed or shrunken tax credits or increased tax liability. This will bring in $94.1 $94.4 million this year, $226.5 $227.3 million next year, and $269.4 $270.7 million in 2023-24.

Caps the amount people who earn more than $400,000 (joint or individual filing) can use in itemized deductions at $30,000 for individuals and $60,000 for couples. Itemized deductions are certain expenses that tax law allows you to deduct from your income, one of the most common are mortgage interest, medical expenses, and charitable donations (that’s what they mean when they say your donation is tax deductible but there is a whole series of business related things that can be deducted. Some people will just take the standard deduction you are allowed by the government instead of trying to itemize. This is $12,400 for individuals and $24,800 for couples. In federal law, there are currently no limits on how much someone can itemize their deductions other than a cap of 60% of their income (there are limits on individual deductions, like mortgage interest or state and local tax income). This will bring in $59.6 $60.8 million this year, $121.1 $123.7 million in 2022-23 and $125 $128.3 million in 2023-24. Repeals in 2031.

The bill eliminates the current state tax deduction for capital gains income for real or tangible personal property acquired after May 9, 1994, and held for at least 5 years, leaving only property acquired before May 9, 1994, as eligible except for agricultural property purchased before June 4, 2009. Basically right now there is no state capital gains tax. This is what you pay on the amount an asset gained in value while you held it, like a house for instance. If you bought a house for $200,000 and sold it for $400,000, your capital gains is $200,000 (there are other ways to reduce this based on improvements made, etc.). This will bring in $10.1 $9.4 million this year, $20.6$19.2 million next year, and $21.3 $19.9 million by 2023-24.

Makes the pass-through tax change passed last year that just applied to 2021 and 2022 permanent. For taxpayers whose adjusted gross income exceeds $163,300 for single filers or $326,600 for joint filers, the provision in the 2017 federal tax bill that allowed pass-through businesses and C corporations to deduct 20% of that pass-through income was repealed at the state level for those two years. So in essence it was a 1% tax cut for anyone who qualifies for Colorado taxes, which the bill last year temporarily reversed and this bill extends through 2025 (which is when the federal change expires). This law was part of the massive federal tax law changes in 2017 and expires in 2025. This extension will bring in an additional $37.9 million in 2022-23 and $77.6 million in 2023-24.

Caps tax deductible contributions to 529 college-savings plans at $10,000 for individuals and $15,000 $20,000 for couples per person and $30,000 for couples. This is lower than the same as higher than the federal level, which is $15,000 per person (just the annual gift tax amount limit), which means for a couple you could do $30,000 if you filed separately. In practice that may mean that the $15,000 limit for couples stays roughly the same as federal law (state law currently has no cap at all). The limits are tied to the percentage change in average costs of tuition and board at all statewide institutions of higher education. State is to examine a representative sample of information provided by CollegeInvest (which runs 529s in the state) to look for people breaking this law. Must report to the legislature each year. This will bring in $5.4 $5.2 million this year, $11.1 $10.7 million in 2022-23 and $11.6 $11 million in 2023-24.

Removes a federal (default in Colorado is to follow federal tax deductions unless state law says otherwise) business lunch tax deduction that only applies to 2022. This was a temporary increase in the deduction from 50% of the amount spent to 100% that was part of COVID relief. This will bring in $3.5 million this year and $3.5 million next year (our fiscal year runs July to June, so 2022 occurs in two fiscal years).

On tax liability, the bill makes changes to how companies are liable for business taxes in the state. Right now the rule on if multiple affiliated corporations need to pay Colorado income taxes is the so-called “three of six rule”, which is that you must meet 3 of 6 different conditions. This bill creates a new test for multiple affiliated corporations under a unitary business. These affiliated corporations must file a single tax return with the income of each member corporation all added together. This total income must then be apportioned by state to determine Colorado tax liability. Unitary business is defined as a single economic enterprise made up of either separate parts of a single C corporation or an affiliated group of C corporations that are sufficiently interdependent, integrated, and interrelated so as to provide a synergy and mutual benefit to creates significant value to each of the parts. In addition, the bill changes how that apportionment of income should work, right now a business must have a significant economic presence in the state, but the bill changes that so if only one of the affiliated businesses has a significant economic presence, all of them count. Businesses must count income for any sales in Colorado, regardless of if the business has a significant presence or not. Finally, right now insurance companies with less than half of their revenue coming from premiums don’t pay income tax, they instead pay an insurance premium tax. The bill changes this so they pay income tax. The insurance premium tax is 1-3% depending on various factors and mostly goes to the general fund. This will bring in $9.7 million this year, $20.2 million in 2022-23 and $21.2 million in 2023-24.

It also cracks down on tax avoidance. In those same combined groups, all entities incorporated in foreign jurisdictions for tax avoidance must be counted as well. A company can overcome the assumption that the foreign incorporation is for tax avoidance if it can prove it meets federal economic substance doctrine (essentially valid economic reasons). This will bring in $5.8 million this year, $12.1 million next year, and $12.7 million in 2023-24.

Additional Information:

Requires CollegeInvest (which runs 529s) to provide the state each year with a report containing the information of all contributions to 529s, including social security numbers, and all unqualified distribution amounts (if you spend money out of a 529 on a purpose that is not allowed, you have to pay tax on it) and the reason for the unqualified distribution.

Due to TABOR, the bill also requires increases of transfers from the general fund to the state education fund of $6.6 $6.7 million this year, $16.1 million next year, and $19.2 $19.3 million in 2023-24 (has to do with taxable income levels).

Auto-Repeal: 2031 for employee-ownership transition credit and cap on itemized deductions

Arguments For:

Bottom Line:

It is critically important to first note that our tax system in Colorado is regressive: the rich pay a lower percentage in taxes than the poor. This is because the income tax rate is flat, but there are more lucrative tax breaks available for the wealthy. This is compounded by sales taxes which hurt poor people more. The effective tax rate in 2015 for those earning $200,000 or more was 3.9%. For those earning $0-$15,000 it was 6.3%. And those are just percentages! $1,000 means a lot more to that bottom group than the top
Federal tax pass-throughs benefit business owners and no one else. People making more than $1 million a year are getting 44% of the benefits from this law and people making less than $200,000 are getting less than 25% (yes that’s the lowest bracket considered). We already temporarily reset this pass-through to law as it existed prior to 2017, this bill just makes that permanent
For capital gains taxes, 99% of the benefits of this credit go to the wealthiest 1%, and capital gains is mostly about selling stocks and selling property
For the itemized deductions, this is the playground for the wealthy and a huge part of how they avoid their fair share of taxation. At the federal level, in 2017, 90% of those earning over $500,000 itemized and 80% of those earning $100,000-$500,000 did, versus 43% of those in the $50,000-$100,000 bracket, 20% in the $30-50,000 bracket and 7% in the under $30,000 bracket. And you’ll never guess what happens when you look at the itemization amount. The average for those in the $100,000-$500,000 bracket was just under $32,000 (so close to the cap in this bill). The average for the over $500,000 bracket? $248,000 dollars
Business tax avoidance is a similar story: we are trying to ensure people who can afford to do so are paying their fair share and not avoiding taxes through a variety of schemes only available to them
For what we are spending this on, the earned income tax credit is one of the most effective tools in our battle against poverty. Numerous studies have shown it boosts work effort, particularly among single mothers. On the federal level this credit has helped millions of families escape poverty
The child tax credit operates in a similar manner but it focuses more intensely on families with children. It is hard to overestimate how expensive children are, and the overall societal benefits to keeping children out of poverty are immense. Increased health and education outcomes lead to better paying jobs and a better future
We also must consider two different factors that are outside the scope of just this bill. That expiring pass-through deduction this bill makes permanent will cause a $58 million hole in our expansion of the earned income tax credit, because it was expanded last year and without this bill, in 2022-23 we are going to come up short and have to tap other funds
The tax cut votes approved last year, which was a uniform cut so actually made our code more regressive, will cost the state $150 million a year in revenue. In combination with HB1312 the extra revenue will fill that void too

In Further Detail: Before discussing the individual tax credits, an important fact about Colorado: we have a regressive income tax system, which means the rich pay a lower percentage in taxes than the poor. This is because we start with a flat tax rate, and there are more lucrative tax breaks for the wealthy than for the poor. And this is all before we even consider this additional federal tax break. This unfairness is compounded by sales taxes, which of course are the same no matter what your income is, but hurt poor people much more. 2015 is the last year for which we have complete data, and those earning $200,000 or more paid an effective total tax rate to the state of 3.9% of their income. Those earning $0-$15,000 paid 6.3%. But people don’t put percentages into the bank account, so even if it was the same percentage the fact remains that you talking about people who in poverty versus people who are most definitely not. With that in mind let’s talk about each of these three tax credits individually. The federal tax breaks for pass-through income firstly benefits business owners and no one else. Freelancers of course can form their own personal business, and many legal, consulting, and accounting firms are set up this way. So are a lot of hedge funds and private equity groups. But on the whole, people making more than $1 million a year are getting 44% of the benefits from this law and people making less than $200,000 are getting less than 25%. Think about what it means that we aren’t even thinking about breaking down lower levels of income. It’s also pretty important to remember that big chunks of this are simple continuations of resets to previous law. For the capital gains reduction, 99% of the benefits of this credit go to the wealthiest 1%, and capital gains is mostly about selling stocks and selling property. Neither has much to do with creating jobs. The itemized deductions cap is also pretty simple. If you are earning more than $400,000 a year in Colorado you are wealthy. Sorry, there’s no other way to say it. For the most part itemized deductions are the playground of the wealthy. Those basic mortgage interest deductions and charitable deductions frequently don’t add up to the standard deduction for most people. In 2017 just 31% of people itemized their deductions. But 90% of those earning over $500,000 itemized and 80% of those earning $100,000-$500,000 did, versus 43% of those in the $50,000-$100,000 bracket, 20% in the $30-50,000 bracket and 7% in the under $30,000 bracket. And you’ll never guess what happens when you look at the itemization amount. The average for those in the $100,000-$500,000 bracket was just under $32,000 (so close to the cap in this bill). The average for the over $500,000 bracket? $248,000 dollars. On average. This is a key part of how the wealthiest Americans leverage the tax code to avoid paying taxes (mostly has to do with business-related expenses and activities too, not massive gifts to charity). So yes, it is perfectly appropriate in our regressive tax state to remove this tool for the wealthy to avoid paying their fair share. If you earn less than $400,000 this won’t affect you at all and even if you earn more, you still get to lower your tax burden by $30,000 for individuals or $60,000 for couples. You’ll survive. In fact, that is pretty much the theme for the entire bill (529 contributions fall into a similar category here, if you can afford more than $15,000 a year you’ll be just fine). The business taxes are a similar story, essentially we just want people and businesses paying their fair share. Doing so frees up money we can use for other purposes. The earned income tax credit is one of the most effective tools in our battle against poverty. Numerous studies have shown it boosts work effort, particularly among single mothers. This in turn helps get people off welfare programs. On the federal level this credit has helped millions of families escape poverty. The child tax credit operates in a similar manner but it focuses more intensely on families with children. It is hard to overestimate how expensive children are, and the overall societal benefits to keeping children out of poverty are immense. Increased health and education outcomes lead to better paying jobs and a better future. This is a multi-generation tax credit. We also must consider two different factors that are outside the scope of just this bill. The first is a bill that passed last year, the one that started the temporary change in pass through deductions this bill in essence makes permanent. That bill also expanded the earned income credit, from 10% to the current 15% but it’s funding structure meant a $58 million loss in 2022-23. So part of the “excess” revenue from this bill is going to pay for that expansion. The rest, in combination with HB1312, is paying for the tax cut votes approved last year, which will cost the state $150 million a year in revenue. Again remember: we are a regressive tax state. The tax cut last year made that worse by a uniform tax reduction for everyone. This bill helps right the balance a bit by restoring (in combination with HB1312) the lost revenue on the backs of the wealthy instead of the poor so the net effect from last year’s ballot measure and these two bills is a more progressive tax system. Finally, remember that TABOR puts revenue caps on what the state can bring in every year. If we exceed the caps (and the estimate is that we would in 2022-23 thanks to these two bills), taxpayers get money back. As for the trickle-down theory of economics Arguments Against leans into, we’ve spent 40 years trying that. It doesn’t work. People pocket the extra money and spent it on yachts, not more jobs.

Arguments Against:

Bottom Line:

Wealthy people deserve their hard-earned money and the idea they don’t need it isn’t fair to them. Another way to look at our tax code is that those who make more than $200,000 support 1/3 of the entire tax burden of the state while those that make $0-$15,000 support just 3%
The idea behind a lot of these credits is to help fuel the engine of our economy: business owners who create jobs. The more money they have in their businesses the more they can grow and create more jobs. This applies to pass-through income and itemized deductions because many small businesses owners’ personal and business finances are quite entangled
The itemized deduction change could also negatively affect charitable giving
Pulling $260 million out of businesses as we try to recover from the pandemic may damage the state
We just expanded the earned income tax credit, we should give that time to actually work before expanding it again
We don’t need new revenue to fund the child credit, the ability to collect sales tax on items shipped out-of-state should (and was the original intent of the legislature, the law was just sloppily written and didn’t consider the Supreme Court would pave the way instead of Congress)

In Further Detail: The idea that wealthy people just don’t need their hard earned money is not fair to them. Another way to look at our state taxes is that those who make over $200,000 a year support 1/3 of the entire tax burden of the state, while those that make $0-15,000 support just 3%. So the rich are paying. And the idea behind the pass-through tax credit is to help the engine of our economy, business owners who create jobs. The more money we can allow them to keep in their businesses (remember their business income is being paid on personal taxes) the more they can grow their businesses and create more jobs. A similar story can be told about itemized deductions, a lot of people structure their expenses around the idea that they can be itemized. Beyond the business implications (and yes, it gets complicated for small business owners who mix together a lot of their personal finances with the business finances), another casualty of this cap may be charities, who rely pretty heavily on the tax-deduction concept in soliciting donations. So it has to be a balancing act between credits targeted to help the poor and those targeted to help create more jobs for everyone. Pulling $260 million out of businesses in the state as we try to recover from the pandemic may also damage the overall economy in the state, just as much or possibly more than cutting government programs. For the earned income tax credit, as Arguments For notes, we literally just expanded that last year, from 10% to 15%. Give the expansion a chance to work before we go back for more. The child tax credit should be implementable without these extra funds, the original concept in the law was that the credit would come into being once we were able to use sales tax on items delivered out-of-state. But it was poorly written and required Congress to pass a law. Instead a Supreme Court ruling has paved the way for this extra sales tax collection. So simply implement the tax without this added funding.

Bottom Line:

This is a good time to revisit the entire child tax credit idea and get rid of it, using the savings to fund our budget gaps and educational needs. Adults with children are already given great advantages in federal and state tax codes and we don’t need to be piling on more money to lower income families who have lots of children. Some form of self-discipline and reliance needs to be in play.

HB21-1312 Insurance Premium Property Sales Severance Tax (Hansen (D), Moreno (D)) [Weissman (D), Sirota (D)]

PASSED

AMENDED: Minor

Appropriation: $412,642
Fiscal Impact: About $114 million this year, $134 million next year, not estimated going forward but will continue to rise slightly into the future

Goal:

Make multiple changes to business tax laws that net out to about $114 million in revenue to the state this year and $134 million next year. This includes losing about $19 million a year by expanding the personal property exemption for businesses from $7,900 to $50,000 (state is to cover all local government lost revenue due to change). For new revenues, the bill requires insurers to have at least 2.5% of their domestic workforce in the state to qualify for an existing 1% tax break by 2024, ends an exemption for non-retirement plan annuities issued by insurance policies, requires sales tax on a few items not previously required by law, removes the portion of sales tax vendors are allowed to keep for those who earn more than $1 million a month, requires any costs that go to reducing severance taxes for oil and gas companies to be directly paid by the company, and phases out tax breaks for coal companies, directing all of those extra coal revenues to the existing just transition fund.

Description:

The bill nets out to $113.6 million-$115.5 million this year and $131.7 million-$135.5 million next year in added revenue to the state.

The bill makes one expansion of currently existing tax exemptions. Right now businesses are exempt from personal property taxes if the property is worth less than $7,900. The bill increases that to $50,000 and then sets it to adjust for inflation every two years. The state is required to reimburse local governments for their losses due to this change (each county must calculate and report its lost revenue to the state every year). This will cost the state $18.9 million this year and $19 million next year.

Currently insurance policies underwritten by insurers with a regional office in Colorado are taxed at a rate of 1% on premiums instead of 2%. The bill adds an additional requirement to qualify for this lower level, requiring that the company have at least 2.5% of their domestic workforce in the state. This is phased in with the 2% requirement staying for 2022, then 2.25% for 2023 and 2.5% for 2024. This will bring in $60.5 million this year and $64.7 million next year. The bill also ends an exemption for insurance policies issued in conjunction with an annuity plan if the plan is a deposit-like contract that do not incorporate mortality or morbidity risks. Other annuities purchased in conjunction with a qualified retirement plan, a 401(k) or individual retirement plan remain exempt. This will bring in $55.3 million this year and $59.2 million next year.

Requires sales tax on several new items, including mainframe computer access, photocopying, and packing and crating of goods. Codifies into law already existing practice of treating digital goods as tangible property that must be taxed. This would include videos, music, and e-books. This will add $9.5-$11.6 million this year and $10.7-$14.5 million next year. Vendors also get to keep a portion of the taxes collected if they pay the state on-time, current law is 4% with a maximum of $1,000 per month. The bill does not allow anyone with taxable sales of more than $1 million a month to keep any of the taxes at all. This will bring in $7.4 million this year and $15.6 million next year.

Changes the amount of transportation, manufacturing, and processing costs oil and gas companies are able to deduct from severance taxes. Right now they can deduct any of those costs no matter who paid for it, the bill requires that any deducted costs be directly paid by the taxpayer. There is no estimate for how much additional revenue this will bring in.

Currently the first 300,000 tons of coal produced in each quarter are exempt from severance tax and there is a 50% tax credit for coal produced from underground mines and from lignite rock. The bill phases out both exemptions, decreasing the 50% by 10% a year starting in 2021 until it reaches 0 in 2026 and reducing the tonnage by 60,000 tons a year until it reaches 0, also in 2026. All increases in severance tax from these changes go to the just transition fund, which provides money to communities and workers transitioning away from the coal industry. The effect of this is only measured for the first two years, but it is $180,000 in year one and $600,000 in year two.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

The insurance industry is one of the most profitable industries in the country and the state auditor has found this tax credit is not working as intended by bringing more jobs to the state. So the bill simply adds a jobs requirement. To the extent insurers “leave” because they no longer qualify, they obviously won’t be taking very many jobs with them
The annuities exemption has turned into a tax shelter instead of its intended purpose of promoting retirement accounts, the bill simply restores the intended purpose
Sales tax changes are mostly about keeping up with the times, except for the vendor fee cap. For that, any company that brings in $1 million or more a month in sales doesn’t need that $10,000
For oil and gas, this is in response to a 2016 state supreme court decision that widened what these companies could claim. The bill simply restores the concept of only direct costs the company paid for being deductible
Part of the revenue goes to help small businesses, who get a big boost in the amount of property they can exempt, to the tune of $19 million a year. The bill ensures no local governments will be hurt by this change
The rest, in conjunction with HB1311, goes to pay for the tax cut approved last year by the voters. We have a regressive tax system in this state and flat across the board tax cuts makes that worse

In Further Detail: Much of the new revenue in this bill is simply cleaning up tax credits that aren’t doing what they are supposed to and clarification around sales taxes. For insurers, the insurance industry is one of the most profitable industries in the entire country, and dangling out the 1% break to try to get regional HQs here in Colorado simply isn’t working as intended to bring jobs into the state (this according to the state auditor). So the bill simply changes this to require an actual commitment by an insurer to employ Coloradans to get the extra 1% break. Any insurers that “leave” the state due to this aren’t going to be taking many jobs with them or they would still qualify for the break. The annuities exemption is another one that simply isn’t working as designed. It was supposed to promote retirement annuities but has instead twisted into a tax avoidance scheme. Note how much money the simple change of just allowing retirement funding plans to get the exemption brings in. The sales tax changes are frankly just keeping up with the modern world and for the vendor fee, someone bringing in over $1 million a year in sales doesn’t need help in tracking and paying their sales tax. In both of these cases we are talking about extremely wealthy companies that don’t need the added help the tax code is currently giving them. For the severance tax changes to oil and gas, this is in response to a 2016 state supreme court ruling that greatly expanded the definition to include costs that weren’t directly paid by the taxpayer. That is obviously not the intent of the law, and this bill just clarifies that only direct costs are deductible. Part of the revenue generated by all of this will go to helping small businesses who will be able to exempt even more personal property from taxation. The bill ensures that no local governments will bear the brunt of this change, all of the money will be paid for by the state (from part of the revenue brought in by this bill). The rest of the “excess” revenue, in combination with HB1311, is paying for the tax cut votes approved last year, which will cost the state $150 million a year in revenue. It is worth briefly noting that our tax system is regressive, which means the rich pay a lower percentage in taxes than the poor. This is because we start with a flat tax rate, and there are more lucrative tax breaks for the wealthy than for the poor. So when we lower taxes on an across-the-board rate like was done last year, that actually makes the system more regressive. This bill, along with HB1311, helps restore some of the lost balance. Remember that because of TABOR, the state has a revenue cap and if it hits that cap it has to return the excess money. This bill doesn’t change the cap at all.

Arguments Against:

Bottom Line:

It seems almost certain that some insurers will not meet the new 2.5% requirement and move their regional HQs out of the state, which would cost jobs, even if it not a lot in the grand scheme of things that is still someone’s job
The vendor fee is supposed to cover administrative costs, thanks to how complicated sales taxes have become those may actually be higher for bigger businesses who should not be punished for being successful
We don’t need to do anything to “fill” the revenue loss from the voter approved tax cut last year. The voters said they thought they should keep more of their money and pay less to the state in taxes. It’s just that simple

In Further Detail: The change to the insurance tax break will almost certainly cause some regional HQs to leave the state, taking jobs with them. The 2.5% requirement means we aren’t talking about wide scale job losses but tell that to the people who may lose their jobs because of this change. For the sales tax change, actually a big business is going to have a much more complicated job of keeping up with sales tax requirements because thanks to the legislature they now have to track sales tax in all of the jurisdictions across the state. That is the original point of the vendor fee, it isn’t some bonus or pat on the head for vendors, it is supposed to cover their administrative costs in collecting sales tax and properly distributing it to governments. This increasingly means governments all over the country, as Colorado is not the only state jumping on the chance to bring in more sales tax revenue thanks to the Supreme Court ruling that allows collection of sales tax on anything delivered into the state, regardless of where the business selling the item is located. So it is only fair to these big businesses to give them their administrative costs too, otherwise we are simply punishing them for being successful. This bill is the one of the two (along with HB1311) that generates the most excess revenue so it is really worth talking about what exactly the voters did last year. They said we think we should pay less taxes. They didn’t say anything about redistributing the tax burden onto the wealthy or businesses. So there is no “need” to fill any revenue holes. The state has a $30 billion budget, we can live without the $150 million “lost” thanks to the voters.

SB21-007 Improve Public Confidence Election Validity (Lundeen (R))

KILLED BY SENATE COMMITTEE

Appropriation: None
Fiscal Impact: About $1.7 million in costs to the state which must be borne by increased fees on businesses; impacts ranging from about $40,000 to $1.5 million on individual counties each election cycle, depending on county size.

Goal:

Change voting in Colorado in general elections from all-mail ballots to only mail ballots by request, requiring everyone else to vote in-person in the seven-day period leading up to and including election day, with polling locations open from 7 AM to 7 PM on each of those days. Counties get to decide how many polling locations to open (right now it is determined by population size)
No ballots received after election day will count (right now military members have up to 8 days after the election to get their ballot in) and counties must count all ballots on election day (they can start counting on the first day of voting, unlike now when they must wait until election day). No results may be released until all ballots have been counted

Description:

The bill does not mention primary elections. It does not alter any current legislative text in law (it begins with “notwithstanding any other provision of law”), so it is silent about mail ballot drop boxes which would presumably operate under our current rules, which do have minimum requirements for counties.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

The release of results over time stretching into the day or days after the election can be confusing, this ensures we get one answer at the end and that the end is in fact election day
Some people don’t feel as secure using mail ballots and prefer the old-fashioned method. Those that like mail ballots can still request them and all such requests are to be granted

In Further Detail: One thing that we all should be able to agree on: the counting of ballots should not be a spectator sport, with all the ebbs and flows of a back-and-forth basketball game, complete with large come from behind victories that only appear that way because of the order ballots were counted in and the fact that we release ballot counts before the final result is known. This confuses some partisans, who don’t understand the ins and outs of the process, and was a big factor in the ability of some to push falsehoods about the 2020 elections. This bill ensures all of that stops, with one answer about who won when we know it and ensures that we know on election day itself (or just after we tick over to the next day). On the mail ballots themselves, the fact is that some people don’t feel comfortable with their use. For those that do, the bill provides for the ability to opt-in to using them. It also provides a strong early voting period requirement, with local control flexibility for counties to determine number of polling places. Anyone who wants to cast a ballot will find plenty of opportunities to do so.

Arguments Against:

Bottom Line:

This may cause a massive mess—what happens if all the votes aren’t actually counted by 12:01 AM on the morning after the election (which doesn’t happen in any state in the country right now)? Do the uncounted ballots just not count at all, which would raise a host of constitutional issues? What if a particular county decides it wants to count precincts friendly to the political party in charge first and “accidentally” does not count the ballots of unfriendly precincts? What happens in primary elections? Are we truly going to disenfranchise an overseas member of the military because their ballot didn’t arrive until the day after the election?
We have one of the best and safest voting systems in the entire country—and our residents like it. We don’t need to change it because some people are unhappy with election results. The rest of the country would do better to be more like Colorado—which the Department of Homeland Security has called the most secure system in the entire country
This will dramatically increase the costs of all of our counties to administer elections in the state

In Further Detail: This bill is full of unfunded mandates that will fall on our counties. Counties must maintain our current dropbox structure (as the bill is silent about it), but must create new infrastructure to handle mail ballot requests, massive polling location staffing requirements, and a virtually impossible to meet ballot counting standard. What happens if a county doesn’t count all of its ballots by the end of election day? Considering no state in the entire country gets all of its ballots counted by the end of election day, it seems like a pretty likely occurrence. The bill does not say but clearly the only answer is they do not count. Which would open a major can of constitutional worms the state would likely lose. What happens if a county decides to mess with the process and fail to count ballots it thinks is unfriendly to its political party by the end of election day? The bill does not say. In fact, right now ballots are counted in a centralized location in a system that is a pretty well-oiled machine. That won’t be possible under this bill, so all ballots on election day will need to get counted at the precinct itself. And who thinks the results of the ballots cast before election day are going to stay a secret to all of the politicians in this state and thus likely the media? We have one of the best voting systems in the entire country—it is easy to use (since adopting it we always have one of the highest voter turnout percentages in the country), it is cheaper than running regular elections with polling sites (our costs went down about 40%), and it is extremely secure (0.0027% of ballots cast in 2018 were referred for investigation and conservative groups have found only 9 instances of vote fraud since we adopted the system in 2013). The Department of Homeland Security has called our system the most secure in the country. We were the subject of numerous envious articles in the past year as other states struggled during the pandemic. And perhaps most importantly: Coloradans like our system! Those that aren’t secure with sending a ballot in the mail can use a dropbox. Those that don’t feel good about that either can still in fact vote in-person, including on election day itself, using their mail ballot. Our system does not need this change to satisfy some people who are unhappy at the results of the last election.

SB21-033 Conservation Easement Working Group Proposals (Sonnenberg (R), Winter (D)) [Roberts (D), Will (R)]

KILLED BY HOUSE COMMITTEE

AMENDED: Minor

Appropriation: $5 million taken from tax credits for easements this year
Fiscal Impact: One-time loss of $149 in refunded tax credits, rest not yet released

Goal:

Properly compensate taxpayers who were improperly denied tax credits between 2000 and 2013 for conservation easements, based on the value accepted by the IRS with some adjustments and create an ombudsperson to handle disputes related to easements that were transferred to someone else.

Description:

The credit due to the taxpayer is based on the value accepted by the IRS, reduced by any amount that was subsequently allowed or reinstated to the taxpayer. Bill provides a process for resolving who gets the credit if it was transferred to another taxpayer. Compensation is limited by number of available unused credits from 2013-2019. If that is not sufficient to pay everyone who is owed money, the ceiling is boosted by 50% and future years are reduced by the same amount (so the total spent remains the same over time). Claims paid out in order received. State must notify every taxpayer who had a claim denied in these years. Claimants have until the end of next year to apply for their credits.

The ombudsperson may be an employee of the state or another professional with knowledge of conservation easement transactions. If the parties cannot come to an agreement with the ombudsperson’s assistance, then it may be referred to an arbitrator for final judgment (state pays for this).

Additional Information:

State must have information on the program and how to apply online by August 15, 2021. Taxpayers applying for compensation must include the following: a copy of the federal tax form used to substantiate the federal tax deduction and if the amount was adjusted, documentation confirming the amount ultimately allowed by the IRS. If more than one person has claim to these credits they can work together. Applicants must attempt to notify anyone who would be eligible for a portion of the credits and anyone who receives this notice has 90 days to file an objection. Objection must state the alternative compensation proposed. Ombudsperson to sort these objections out. State must release funds 30 days after final resolution (or if there was no objection, 30 days after objection deadline expired). Taxpayers have until October 2022 to apply.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

The state owes people money, plain and simple, and we must pay them. This is the fairest way to do it
Separating the payment issue from the easement program going forward allows us to take of this long-festering problem now while we work on the rest

In Further Detail: The state did great damage to a number of property holders between 2000 and 2013 by disallowing easement tax credits to landowners. To the tune of more than $144 million over those 14 years. This bill is a bipartisan agreement following careful study of how to remedy that harm and allow the easement program to move forward into a new era that will allow it to serve its mission of protecting our natural resources while rewarding property owners who participate. As for leaving out the rest of the recommendations of the study group mentioned in Arguments Against, we need to make these folks whole now and separating out the repayment issue allows us to finally take care of it. We can tackle the rest of the recommendations separately.

Arguments Against:

Bottom Line:

The bill does not make enough of an attempt to distinguish between people who really got cheated out their credits and people who were properly denied. A working group in 2018 actually found most of the denials we are focusing on here were proper
Some of this was bad enough that the IRS added syndicated conservation easements as one of its "dirty dozen" tax scams

In Further Detail: Although the bill does provide each claim to be examined by the state, it is more in the line of making sure this was a claim that was rejected during the time frame, not whether or not the easement itself was properly rejected the first time. The working group that came up with the plan this bill is based upon was actually not the first group to study the issue. In 2018 a different working group came to a different conclusion: the vast majority of denials during this period were legitimate. At the beginning of this program the fact is that some people bought up cheap farmland, got it appraised at inflated values, and then put it under conservation easement to dodge taxes at the inflated value. It was so bad that the IRS deemed it syndicated conservation easements and included such schemes as part of its "dirty dozen" tax scams. The most egregious examples were so-called "gravel pits": farmland that were bought for $400 to $500 an acre, subdivided into 40 acre lots and then reappraised as gravel pits. One such piece of land would have had to generate 40 years of gravel production for the entire county it was located in just to match the single year projected value. Another piece of land turned $776,000 at purchase price into $8 million in claimed easements. The people behind these schemes do not deserve this money.

Bottom Line:

Where is the rest? The bill last year that took the recommendations of the study group had a lot more to it: increased tax credits for new easements, an entire process to investigate abandoned easements.

In Further Detail: We had a bill last year that was derailed by COVID and the resulting budget crisis that was the full recommendation of the bipartisan working group on this subject. It had this repayment as part of it, but that was only half the bill. The rest dealt with increased tax credits from 75% to 90% of the land’s value for new easements and an entire complicated process for dealing with easements that may be abandoned.

SB21-034 Water Resource Financing Enterprise (Coram (R))

KILLED BY SENATE COMMITTEE

Appropriation: None
Fiscal Impact: $38 million annually

Goal:

With voter approval in the 2022 general election, create a TABOR exempt water resources financing enterprise which collects a small fee on drinking water used by residents and spends the money on financing water projects in the state.

Description:

Creates the Water Resources Financing Enterprise which collects fees from drinking water customers to provide water resources financing to providers (including by issuing loans, bonds, and grants). This is exempt for TABOR restrictions. These fees are to be collected by drinking water suppliers, which can keep 3.3% of the fee. Fee is set at $0.25 per thousand gallons of drinking water delivered per month after the first 4,000 (so you only start to get charged after 4,000 gallons and it resets every month). Can be adjusted for inflation. Governed by board of directors consisting of the boards of the state Water Resources and Power Development Authority and the Water Conservation Board. 2/3 majority required to act. Must meet at least quarterly. Board can adjust fee in either direction for large non-residential customers and for customers with suppliers whose pricing tiers start at a level higher than 4,000 gallons per month. Money can only be used for provision of raw water, drinking water, water treatment, or wastewater treatment or for feasibility studies. Bill sets multiple factors for board to consider when deciding on providing financing, including: water provider’s ability to pay, whether it is subject to non-compliance or increased requirements relating to water quality, whether the proposed usage aligns with the state water plan, and the geographic and demographic characteristics of its customers. Board must report its activity to the legislature each year.

Additional Information:

Fees begin in fiscal year 2023-24.

Non-voting members of the Water Conservation Board do not get to vote on this board either. Drinking water is defined as piped and metered water that has been subject to treatment. Water providers, which can receive money from the commission, can supply raw water, drinking water, or wastewater treatment. Suppliers are not liable for a customer’s failure to pay the fee. Feasibility studies can include: consulting, planning, permitting, and construction of infrastructure and water conservation projects and related recreational, hydroelectric, and flood control facilities. Cannot include maintenance and operation.

Bonds can be issued for repayment exclusively from the revenues and receipts of a project financed by the bond. They can require additional security from the facility taking out the bond. Board has pretty much unlimited control over they bond types, interest, maturity, conversion, etc. They may be sold at public or private sale at the price and in manner board determines. Bonds are in no way liability of the state. Each bond must state that payments only comes from enterprise funds, that the state is not obligated to pay, and that faith and credit of the state is not behind the bonds.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We need a lot more money, up to $100 million a year, to fulfill our state water needs—which only grow as our population grows and as our droughts grow
This program will barely be noticed by most consumers: an average of $6.67 per resident per year increase in water bills
By setting this up as an enterprise, the revenue gained here will not come at the expense of other programs, because it will not trigger any TABOR refunds
Coloradans will have the ultimate say—the bill only puts this on the ballot

In Further Detail: We are way behind in addressing our state’s water needs. To fully implement our state water plan by 2050 the estimate is that we need to spend $100 million a year to reach the $3 billion required to fill the funding gap we have identified. Suppliers of raw water, drinking water, and wastewater treatment services are a part of that plan and have substantial, unmet, financing needs. It is therefore a matter of public interest for all of us to create an enterprise fund that can leverage money into the larger sums we need. The way this bill constructs the fee that funds all of this ensures that it affects people who are using the most water the most, while allowing for some consideration of non-residential users. This is a chance to make a real investment in our water needs, with $37 million of estimated revenue annually that we can mostly direct right to our water plan without triggering refunds to taxpayers which would result in cuts to areas like education or health care. With the proper leveraging of that $37 million we should be able to at least come close to the $100 million in annual spending we need to ensure that we have enough water in Colorado in 2050 for our citizen’s needs. All for about $6.67 per resident per year. And Coloradans will have the ultimate say here, thanks to the initiative passed last year no enterprise of this size can go into law without voter approval. So if Coloradans want this, they can pass it. If they don’t, they won’t.

Arguments Against:

Bottom Line:

While it is dressed up into a fee to avoid TABOR, this is in fact a water tax. It takes $38 million out of citizen’s pockets each year and puts it into the government’s pockets to spend on water projects
There are no protections on fee adjustment, it is up to the whims of the board

In Further Detail: This is a tax, it is something everyone will have to pay who uses water. And it is a tax with a sliding rate for inflation and subject to adjustments made by the unelected governing board for “large” customers. The definition of large will be left up to the board and you can see the potential for political gaming of the system a mile away. Those games of course always leave out regular people.

SB21-037 Student Equity Education Funding Programs (Lundeen (R))

KILLED BY SENATE COMMITTEE

AMENDED: Significant

Appropriation: None
Fiscal Impact: None for revised bill

Goal:

Allow parents with children eligible to attend any public elementary school in kindergarten or 1st grade that closes for more than 30 school days at any time to use the per-pupil the school would have received for their child on home-schooling or private school options instead of attending the public school for two years. Money comes from a state fund, which is appropriated $20 million annually by the bill, which is distributed $4,000 for each student in the program, supplemented by the state's share of per-pupil revenue if applicable to bring the total up to the per-pupil amount for the student
The governing board of any school that is eligible by dint of closure must set up a fund with which to disperse these payments, which are to be made in equal monthly increments. The board must audit a representative sample of parents on this program to ensure they are using the funds as allowed. If it finds they are not, it can commence legal action to recover the money

Description:

Students have to either have been in the school the year before the closure occurred or be in the school district. They can have attended private school or be homeschooled already.

Parents must apply to this program through their schools by June 15^th prior to the new school year. Application must include an affirmation under penalty of perjury that they are eligible, a description of the educational services the parent purchased or provided for the student in the past year (if any), and a description of the educational services the parent will purchase or provide with the money.

Schools must approve applications if they determine the child is eligible. Parents can use the money for educational materials, homeschooling, or enrollment in private school. The parent must submit electronic receipts quarterly.

Additional Information:

Schools must notify parents by June 1 of any eligible year (so since this year is eligible it will apply) of this program, including posting information on their website on how to apply. This must include the name and contact number for the contact person at the school for questions, eligibility requirements set forth by this bill, how parents can apply, the amount of money they are eligible for, and how they can spend it (including reporting requirements).

A student using this program must still take annual standardized tests as required by state law, their performance will not count toward their designated school’s statistics, but they are still considered a pupil for the purposes of school funding.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Some parents chose to spend money to try to prevent learning loss when our schools closed, we owe it those that want to continue to do this in fear that it may happen again
If a child does not attend a school, that school does not get any money, so the school isn’t losing anything by losing per-pupil revenue for a child that isn’t there
The system is designed to promote accountability for spending and has a process to detect and punish cheaters

In Further Detail: When our schools close for long periods of time, the burden falls on parents to try to fill in the gaps, and many try to do so with educational services and products the parents themselves have to pay for. This naturally sets up a have and have-not situation where wealthy parents can more easily keep their children on track. Remote learning produces many of the same problems, although not obviously to the same scale. Some parents may have taken their children out of school entirely so as to keep them learning. All of these parents may want to continue this process to ensure that their kids aren’t hit by these enormous disruptions in the future. It therefore makes sense to ensure these kids can continue to get the education their parents want by using the money the state would have spent on them in public school, and giving it to them instead. The school wouldn’t get the money if the child was not enrolled anyway, so we aren’t necessarily depriving the schools. There is an accountability system to ensure no one is cheating and a mechanism to deal with those that do. The program is also only for two years per kid, so it truly is just a response to the lack of in-person learning in a short-term period

Arguments Against:

Bottom Line:

This identifies a real problem and then veers off into a totally different solution: instead of helping parents recoup costs or bridge closure gaps it sends them away from public schools entirely
Despite the concern about wealthy versus poor parents, there is no attempt to means-test this program and no requirement that the child ever actually attended public school in the first place: the bill is simply a vehicle to shift money from public schools to homeschooling and private schools
Every kid in the state who is school-age will be eligible for this program next year: every single kid who is already homeschooled or in private school can simply grab this handout

In Further Detail: There is a real problem here that the bill identifies. Closures affected families hard, with children losing learning, parents forced to fill-in the best they could, and in some cases, money spent to try to alleviate the harm. But the solution it proposes is simply to pay parents taxpayer dollars intended for public schools so they can homeschool their kids or even send them to private school instead. There is no means-testing to ensure that we aren’t propping up wealthy families who don’t need this, and most dammingly, there is no requirement that the child ever attended the school in the first place. They could have been homeschooled or in private school from the beginning, and still the state would have to subsidize their future schooling outside the public school system. Rather than an attempt to help public school students deal with the unfortunate learning loss and associated harms to the entire family, the bill is an attempt to siphon off kids out of public school altogether, at taxpayer expense. We provide a free K-12 education for all children in the state and that is paid for with our taxpayer dollars, in exchange for which we have the ability to write the rules of the road for these schools and hold them accountable for breaking them. If people do not want to take advantage of this free system, the law allows them to do so. But we don’t have to pay them to do it. And we don’t in any other circumstance: the state doesn’t pay per-pupil funding to parents who homeschool or send their kids to private school. This bill would give a one-time free pass for every parent of a school-age child to change that basic fact. Even as amended, with the limited two year time frame, the basic problem with the bill still remains.

SB21-062 Jail Population Management Tools (Lee (D)) [Benavidez (D)]

KILLED BY BILL SPONSORS

AMENDED: Minor

Appropriation: None
Fiscal Impact: Not yet released

Goal:

Ends use of monetary bail for any offenses below the level of class 2 felonies unless the court can find on the record that cash bail is the only way to either ensure the defendant does not flee or does not threaten the safety of others. The bill does not prohibit the use of pre-hearing release policies that require monetary payment for release (this would be before a judge issued a ruling)
Forbids police officers from performing what is called custodial arrest (arresting someone and bringing them to a jail where they will stay until they get a hearing) for offenses under class 3 felonies and class 2 drug felonies with a few exceptions having to do with imminent danger (see Description for full list). Bill specifically states that no review is required to ensure compliance with this section and it does not create any right to sue for violation of this section or have a case or evidence thrown out of court
Officers may issues summons to court with whatever charges are levied unless the alleged crime involved violence (in which case the officer may arrest the individual) or arrest is required by law
Encourage sheriffs to actively manage their jail populations to keep them as low as possible, including granting authority to test admission standards based on specific offenses

Description:

For appearing before the court because of failure to appear in court when summoned or violating parole for an original crime that was not a criminal offense, the court must issue a personal recognizance bond—which again means no money involved. Unless the failure was for a sex offense or crime of domestic violence and the court finds the defendant poses a threat to public safety or if the defendant has already had probation revoked for failure to comply in the case. Courts may add money in cases of parole violation or any case where failure to appear has happened three times or it finds on the record that the defendant is likely to flee if the defendant failed to appear at a proceeding where witnesses were called or if the defendant failed to appear to interfere or deter witness or victim participation.

The bill removes current law around summons and complaint orders issued by officers to replace it with the bill’s standard. The exceptions to the rule about custodial arrest are: it is required by law, the officer cannot verify the suspect’s identification without arresting them, the officer has probable cause to believe the suspect committed a DUI in the past five years or has three or more DUIs or the officer believes the individual would be dangerous and there is no sober person around to drive them, or the offense is a victim’s rights crime (most of these are already class 1 or 2 felonies but those that aren’t deal with sex crimes, abuse, stalking, violating protection orders, crimes against witnesses, and motor vehicle accidents that result in death), involves illegal possession or use of a gun, involves illegal sexual behavior, violates a protection order, deals with a credible threat to a school, or involves eluding police in a vehicle. In the case of the list of crimes, the officer also must record in the arrest document a reasonable suspicion of danger to public safety or unwillingness to stop committing crime without an arrest.

Additional Information:

In its definition of custodial arrest, the bill excludes officers who are transporting a person to a jail facility for reasons other than holding them there (like getting physical evidence such a fingerprints or DNA or executing a blood-alcohol test) and excludes transport to a hospital or behavioral or mental health facility unless the officer intends to put them in jail upon discharge.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We are an innocent before proven guilty society, we should act like it. The high cost of bail (and bail bonds) can be an impossible barrier for lower-income defendants. This means they will lose their job, maybe their housing, and maybe even custody of their children.
COVID related actions to limit prison populations have shown this can work
Keeping people in prison for no good reason wastes taxpayer money
Both of the previous two points extend perfectly to not arresting people and tossing them in jail pending a hearing for no good reason

In Further Detail: It is a bedrock principle of our criminal justice system that we assume people are innocent until we prove that they are guilty in a court of law. We definitely don’t act that in practice. On any given day before COVID a full 1/5 of the US prison population, 450,000 people, are in jail awaiting trial. The vast majority of them don’t need to be there. They aren’t going to flee, they aren’t there for violent offenses or offenses that might pose a danger to others. Instead they are potentially going to have their lives ruined, before being convicted of anything. They may lose their home, their job, even custody of a child. And the threat of this provides significant leverage to prosecutors. A study in Philadelphia found that assigning bail makes defendants 12% more likely to get convicted. Because people are pushed to plead guilty to low level offenses (or even higher ones) so they can get of jail. All of this is of course a massive waste of taxpayer resources. We spent $960 million of state taxpayer money on keeping people in jail last year. And we’ve learned from actions local officials have taken during COVID to minimize the number of people in jail that this can work. The state’s jail bookings fell by 46% as a result and are still down 35%. That level of decrease over an entire year would save us $170 million. We should only use monetary bond when it is actually necessary, not just as a knee-jerk reaction to any arrest or based on whatever the prosecutor wants. And bond should never be leveraged into getting a guilty plea. Prosecutors are perfectly able to argue in court that any particular case should be granted special exemption due to risk and judges are free to accept those arguments. Police officers are free to use their discretion in the same manner. As for the approach taken last year (mentioned in Arguments Against), a screening tool is a costly mechanism to essentially land in the same place

Arguments Against:

Bottom Line:

Judges already have discretion to deny monetary bail demands from prosecutors, we should let them keep it
Public safety and welfare come before concerns about money, so we shouldn’t come into this looking to find savings
We can use time limits on arrest detention prior to a hearing to cut-down on the time people spend in jail after being arrested
People understandably don’t want to lose their bail money, so it is a valuable tool for getting people appear in court—as is simply arresting them

In Further Detail: Our system already gives judges discretion on bail—we should allow them to keep using it rather then put into place blanket rules that are difficult to overcome. Public safety and welfare have to come before all other concerns, including the state spending money to keep people in prison before trial. So we shouldn’t come into this looking to save money. If we need to spend $960 million a year to keep Coloradans safe, then that’s the price tag. On the arrest vs. summons angle, officers can already issue summons for misdemeanor offenses rather than utilizing arrest. This bill changes this to a requirement then heaps a whole ton of judgment calls on officers relating to public safety. A different way to approach the arrest/detention problem is to set a time limit on detention prior to getting a hearing, which has been a goal of some in the legislature for a few years and is likely to appear as a bill at some point this year. Just 48 hours is not going to ruin anyone’s life and provides enough time for the system to determine the true nature of potential threats to public safety. On the failure to appear angle, the threat of losing money is a valuable tool for getting people to appear in court. This isn’t like missing an appointment at the dentist. The entire court system has prepared for the proceeding the defendant knew about and missed. This not only wastes time, but wastes resources. Again, judges have discretion in this area, let them use it.

Bottom Line:

This diverges widely from the approach taken just last year to this same topic, which was to develop a pre-trial risk assessment screening tool to determine who does and does not need monetary bail

In Further Detail: Last year a bill was introduced that was also about reducing use of monetary bail, but instead of blanket bans and vague notions of threat, it required the state to develop an actual screening tool for everyone to use, partially to prevent a patchwork of rules and systems from developing throughout the state. It also had built-in anti-bias mechanisms to ensure that non-monetary bail was being applied equitably across the entire system. We need to have an approach along those lines.

SB21-072 Public Utilities Commission Modernize Electric Transmission Infrastructure (Hansen (D), Coram (R)) [A. Valdez (D), Catlin (R)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: $500,000 next year, slightly more than that annually afterward

Goal:

Require certain investor-owned most utilities in the state to join a regional transmission organization (RTO) organized wholesale market (OWM), which can be a regional transmission organiztion (RTO) or independent system operater (ISO) by January 2030. This requirement can be waived or delayed by the public utilities commission (see Description for reasons why). The commission may allow these utilities to recover costs of participating in a OWM through increased consumer rates if the utility is losing more money than it is saving in costs by being in the RTO and must allow the utility to retain up to 35% of the savings realized from joining the OWM in years 1-2, 25% in year 3, and 20% in years 4-5 (none after that). The utility has the burden of proof for demonstrating to the commission the value of the savings
Create the Colorado Electric Transmission Authority as in independent authority authorized to select a qualified transmission operator to finance, plan, acquire, maintain, and operate eligible transmission and interconnected storage facilities. The authority cannot enter into a project if an electric utility or other private person is willing to provide what is needed to meet the identified need. It can issue tax-exempt bonds, exercise eminent domain to acquire property or rights-of-way when needed for projects, but it cannot take the property of an electric utility and cannot materially diminish electric service reliability.
The authority is not to own or control facilities itself unless the facilities are leased out to an electric utility or other person approved by the public utilities commission or the facilities do not affect electricity rates or reliability in Colorado. If a lease is broken or breached, the authority can hold the facilities for 180 days. It can sell facilities to utilities
It can also collect reasonable rates, fees, interest, or other charges for services rendered on utility projects. The authority is exempt from control or regulation by the public utilities commission except for rate increases without commission approval
The authority can work with any sort of electric utility on projects. Utilities can recover their costs in these projects from the public only if they have received a certificate of public convenience and necessity from the public utilities commission (or if they are municipal owned or coops, approval from their boards) and if the project costs are prudently incurred and the project is useful in serving its customers
Authority must report annually to the legislature, including complete financial and operating statements

Description:

Regional Transmission Organizations (RTO) are an electric power transmission system that coordinates, controls, and monitors an electric grid that spans several states. As of 2020, there are four RTOs in the US and all but 13 states (including Colorado) have some part of their state in a true multi-state RTO. RTOs buy power from generation stations and sell it to distribution utilities and may not earn profits. ISOs are extremely similar. In Colorado, our investor-owned utilities are Xcel Energy and Black Hills Energy. Both own the generation and distribution facilities and have their rates controlled by the public utilities commission. They are allowed to earn a percentage profit on anything they build. Only utilities that do not have to join an OWM are municipal owned utilities, public utilities that do not own their own facilites, and cooperatives that are not networked.

To qualify for the requirement to join an OWM, the utility must own or operate lines capable of transmitting electric energy at a voltage of 100 kilovolts or more.

Bill does give the commission an out on OWMs. In order for a utility to join, the OWM must be approved by the federal government; effect separate control of transmission facilities from control of generation facilities; implement policies and procedures to minimize pancaked transmission rates ( in Colorado; improve service reliability in Colorado; achieve open and competitive electric marketplace, elimination of barriers to entry, and preclusion of bottleneck facilities; operates to substantially increase economical supply options for consumers; has governance structure that is independent of entities that buy and sell electricity in the region; promotes positive performance; has an inclusive and open stakeholder process, promotes and assists new economic development in Colorado; and is capable of maintaining real-time reliability of the electric grid, ensuring comparable and non-discriminatory access and services, minimize congestion, and further address real or potential system constraints. The commission can also drop the requirement if it determines requiring the utility to join is not in the public interest.

Commission is also tasked with representing the state in cases of managing physical connections, sharing of data, and interpretation and implemenation of tariff and business practices among differnt OWMs that meet in Colorado.

Also requires the public utility board to approve proposals that are deemed to meet cost-effectiveness, can reasonably accommodate future expansion (including that required for participating in a OWM) and renewable and clean energy standards and targets within 180 240 days. Any proposal not approved within 180 240 days is deemed accepted.

For the authority, the bill creates a board of governors consisting of seven members (see Additional Information for more detail).

The authority is to identify corridors for the transmission of electricity through the state and establish interstate transmission corridors. Before undertaking any project, the authority must post notices and give anyone with an interest the chance to object on the grounds that the authority cannot do the project because it is being done by someone else already (full details in Additional Information).

Authority must give priority, to extent possible, to contracts that will transmit or store energy to be sold and consumed in Colorado.

On another note, the bill requires that courts, when evaluating right-of-way claims for an interstate transmission line, evaluate the public purpose of the line including benefits outside the state.

Additional Information:

Requires the construction of any approved proposal to either use its own employees and/or contractors that give access to registered apprenticeship programs. Only design, planning, or engineering of the transmission facilities, management functions to operate the transmission facilities, or any work included in a warranty is exempt.

Commission may use its authority to manage physical connections, coordinate management, facilitate sharing of data, and require consistency in interpretation and implementation of tariffs and business practices between RTOs whose boundaries meet in Colorado.

Authority board composition is: the director of the Colorado energy office, two members appointed by the governor and approved by the senate, two three members appointed by the speaker of the house and two three members appointed by the president of the senate. For the governor’s appointments, one must have expertise in financing major electric transmission projects and the other must represent the interests of customers residing west of the Continental Divide. For the members appointed by the legislature, one must have utility experience (to be appointed by House Speaker), one must represent interests of wildlife conservation and land use (appointed by Senate President), one must represent interests of organized labor, one must represent interests of residential utility customers, one must represent interests of commercial or industrial utility customers and one must have knowledge of renewable energy development. Members must not represent a person that owns or operates energy facilities. Members serve four-year terms and receive no compensation. They can be reimbursed for expenses. They are subject to open meetings laws except for proprietary technical or business information. The board can hire a CEO and authorize hiring of additional staff. The authority can use reasonable funds for administrative costs and is provided a maximum of $500,000 annually from the public utilities commission. Board is create bylaws for its activity.

The authority can sue or be sued, maintain an office in Colorado, acquire or sell or lease real and personal property, receive gifts, grants, and donations, enter into contracts, enter into partnerships with public and private entities, and use the services of state agencies upon mutually agreeable terms and conditions. Authority is to provide information and training to any employees on one of its financed projects regarding any unique hazards, safe work practices, and emergency procedures.

Notice for projects must be provided to each utility in the state, the public utilities commission, and at least once in a newspaper with general circulation in the state, and at least once in a newspaper that circulates in the area where the facilities will be located. The authority must keep a notice continuously available on its website.

Anyone has 30 days to object. The authority must then hold a public hearing within 30 days but must give public notice of the hearing in all of the same places and give two weeks notice. Final decision rests with the authority. Anyone participating in the hearing can appeal within 35 days, jurisdiction is Denver.

The challengers have 90 days to prove they are willing and able to provide the services. If the challengers don’t do anything for six months after prevailing, the authority may proceed on its own.

Authority is given complete control to set terms of its bonds, other than a maximum of 30 year repayment. The board and employees of the authority are not personally liable for the bonds. The bill creates two funds for the authority, one for bonds and one for operations. Any funds earned by the authority must go into its bond fund. The state auditor is required to periodically audit the authority, including this fund.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Joining a OWM will allow Colorado to take advantage of our abundant potential wind and solar energy by exporting it to other states, bring greater reliability to our grid, and potentially save our consumers money on energy bills
The bill lays out strict standards for joining a OWM, so if we won’t get the benefits out of it we aren’t going to join
We need a massive amount of investment in energy projects in the state to meet our climate goals and we have massive untapped potential in solar and wind in southern Colorado for places that simply aren’t connected to the grid and need massive amounts of transmission line construction to work
The authority created in the bill is a broker of last resort, if an existing entity wants to do the project instead than the authority must bow out

In Further Detail: We cannot get to our climate related energy efficiency goals without wider electric grids and massive investments in clean energy. Right now we have fiefdoms in the state, which can share energy but more akin to asking to borrow something from your neighbor than an integrated system. That means two things: one, the potential for wasting energy in one sector that could be used in another is high and two: consumers are at the mercy of the electricity provider in their fiefdom. It also means we don’t have a centralizing authority pushing to build the infrastructure we need. Some believe we will need something on the order of $700 billion in investments across the entire western grid that Colorado belongs to over 20 years. Not all of that will be in Colorado of course, but Colorado is uniquely positioned to be a net exporter of clean energy. We have abundant wind and solar. But we can only do that if we are part of a OWM—otherwise all that extra energy is either going to be wasted or kept within Xcel or Black Hills’ fiefdom (both operate in other states). The other huge benefit to a true OWM is system-wide reliability. We say “true” because technically Texas operates an OWM inside its state that just had a catastrophic meltdown, but it does not cross state boundaries and thus is totally unregulated by the federal government. The potential for system-wide savings is enormous, in the billions of dollars. The concern about loss of local efficiency due to our utilities now having to buy and sell energy in the OWM misses the wider picture. First, right now utilities need to keep about 16% of generation in reserve. With a OWM, you can lower that number down to more like 10%. That’s worth more than $100 million per year. And Xcel could build a massive solar and wind farm in southern Colorado and sell all of that energy, beyond what it needs for its own customers, into the OWM. And of course the competition from all the utilities in the OWM should work to drive prices down. Finally, the bill painstakingly lays out very precise conditions for joining a OWM. In essence, if joining a OWM won’t deliver all of these benefits than the utility doesn’t have to do it.

That massive solar and wind farm brings us to part two of the bill. The problem with building all of that massive energy production in southern Colorado is there are no transmission lines to bring the power into the market. You get below Pueblo and you got nothing. That is the driving purpose behind the authority created by the bill: to fill in the places where our utilities are not willing to make the investment. Because that $700 billion needed will have to come from more places than just our utility companies. The accelerating impacts of climate change, which drive wildfire and drought in Colorado, demand fast action. The authority is designed to be in essence a broker of last resort: it is explicitly forbidden for the most part from owning its own facilities, is forbidden from starting projects others are willing to do, and it is forbidden from using eminent domain on other utilities.

As for the existing power sharing agreements and wider pact mentioned in arguments against, the state works better if the entire grid is integrated. If we leave things as they are, we are going to have a seam in the middle of the state, with parts integrated with one system and parts with another. We didn’t have failures like Texas did, but there were parts of Colorado’s system that failed during the severe cold weather. It is natural that the investor-owned utilities would resist this, we are threatening their monopoly. As for infrastructure concerns, we are all going to benefit from clean energy infrastructure built in other states. We need to stop thinking parochially about power grids.

Arguments Against:

Bottom Line:

This can harm our existing utility companies financially and in terms of efficiency: they currently own the means of creating the energy and the means of distributing it, in a OWM they have to sell their energy and then buy back energy for customers—if this means they lose money they can and will pass that on to consumers
Many of our energy providers are already integrated and planning to join regional pacts
We are giving a massive amount of power up to this unelected authority that can make markets when we already have energy goals our existing utilities must meet and a public utility commission to regulate them

In Further Detail: All of this sounds wonderful in concept but massive coordination on the scale the bill envisions is extremely complicated and involves basically blowing up our state’s model for investor-utilities. If they have to join a OWM they are no longer creating and distributing their own energy. They create energy, sell it to the OWM, and then buy back energy from the OWM. You can easily see where the inefficiency may come that could raise electricity prices for Colorado consumers (since the bill allows the utilities to pass on net losses to us all associated costs on to us). Many of our major energy providers are already integrated with power-sharing agreements and are already planning to join an efficiency and cost-saving pact called the Western Inbalance Market. Some are planning to join others. Going into a pact that is not a full-blown OWM allows us to keep regulation here at the state level, instead of relying on federal government regulation (which does not care about operating budgets at all), and ensures we aren’t paying for infrastructure upgrades in other states. As for the seam issue, the bill only affects investor-owned utilities. Municipalities and co-ops are not forced to join, which has the potential to create the exact same seam the Arguments For was concerned about.

For the authority, we are giving a lot of power up to an unelected board selected entirely by one political party (at least for now). Eminent domain is one of the most powerful tools that exists in our laws: the ability to force someone to sell you their land. Billion dollar bond projects with whatever bonding instrument this board wants at whatever rates it wants. In essence we are talking about creating a gigantic entity that can make markets, even if it is somewhat restricted in terms of direct competition with our existing utilities. All of our publicly regulated utilities have to meet our clean energy goals, so that is going to require some massive investment. Let’s trust them and the already existing public utilities commission to do it right.

SB21-087 Agricultural Workers' Rights (Danielson (D)) [McCormick (D), Caraveo (D)]

PASSED

AMENDED: Moderate

Appropriation: $474,657
Fiscal Impact: About $440,000 a year

Goal:

Remove the exemption for agricultural workers from state and local minimum wage laws. Currently they needed to be paid federal minimum wage (with a few exceptions that the bill entirely removes, see Description for more detail). Also creates a new minimum wage for agricultural workers employed in range production of livestock (herders and rangers essentially). These workers are currently exempt from any federal minimum wage requirements. Bill requires a weekly wage of at least $553.60 $515, which is indexed to inflation
Removes exemption of hourly agricultural workers from overtime payment. Overtime is defined by an excess of 40 hours in a week or 12 hours per day or 12 consecutive hours of work. State is to come up with rules to establish overtime rates of pay and maximum hours protections for agricultural workers. Consideration must be given to inequity and racist origin of exclusion of agricultural workers from maximum hours and overtime rules, fundamental right of all employees to such rules that protect their health and welfare, and unique difficulties agricultural workers have obtaining workplace conditions equal to those provided in other professions
Require agricultural workers to receive at least a 30 minute meal break during shifts of longer than 5 hours (which is to be duty-free unless this is impossible) and an uninterrupted and duty-free rest period of at least 10 minutes for each 4 hours of work. On days where the temperature is over 90 degrees, the 10 minute breaks must occur every 2 hours. Workers must be provided access to at least one quart of fresh, cool, filtered water per hour of work and an area of open-air shade that is large enough for the workers to be seated without touching each other This section does not apply to truck drivers who sole and principal duty is to haul livestock or to a combine or harvester operator while harvesting
Remove the ban on agricultural workers organizing into a union
Ban the use of short-handled tools (less than 18 inches long) the short handled hoe for weeding and thinning and strongly discourage the use of other short-hand tools or hand weeding and thinning in stooped, kneeling, or squatting position unless there is no long-handled tool that will work. High density plants spaced less than two inches apart, handweeding in a program certified by state or federal government as organic, handweeding during seedling phase, handweeding products in containers with less than a 15 inch opening are all permitted, or handweeding or tending the area around around products grown using polyethylene film or plastic mulch. Ban use of long-handled hoes in stooped, kneeling, or squatting positions. Requires the state to set rules for organic program handweeding that protects long-term health of workers and a procedure for agricultural producers to apply for a waiver from handweeding if the producer can prove it doesn't involved extended stooping or squatting and lead ot long-term injury, there is no suitable long-handled tool substitute, and the handweeding does not fall into an existing exemption in the bill
Require employers who house agricultural workers to provide them transportation (unless the worker has their own vehicle they are allowed to park on the employer's property) to a location once a week (except for range workers actively working in production of livestock, which must be one day every three weeks) to access basic necessities, conduct financial transactions, and contact key service providers (health care, attorneys, clergy, government officials). Bans employers from interfering with access to these key providers during non-normal work hours (8 hour period during days of the work week)-work hours, except for health care providers who workers must be able to access at any time, including access to any visitors at the employer-provided housing. State is to set rules on additional times when employers cannot interfere with access to key services during heavy work periods (excess of 40 hours per week) so as to ensure meaningful access. Prohibits barring access to employee housing by anyone other than the resident employee

Description:

For current federal minimum wage restrictions, besides the exemption for range livestock production already mentioned, federal law exempts employers who use less than 500-man days of agricultural labor during every quarter the previous year, employees who are members of the employer’s immediate family, and two more complicated, multi-part exemptions. The first is employees who are paid on a per-piece rate that do not live on the farm and are employed for no more than 13 weeks in the previous year in agriculture (so at any farm). The final exemption is someone under 16 who is paid on a per-piece rate, employed on the same farm as their parent(s) and is paid the same piece rate as employees over the age of 16. In essence, if you have an adult that meets the per-piece rate exemption, you can also hire their kid at the same rate.

Bill bans employers from retaliating against employees for asserting their rights under this bill or publicly supporting someone else doing the same. Bill creates a presumption that any adverse action taken against an employee within 90 days of such an assertion is retaliation. This presumption can be overcome in court, but it is the default position. Employees who believe they have been retaliated against can sue, and can win injunction, equitable monetary remedies, and a penalty of the greater of actual damages or $10,000. Bill also allows the state to take action against employers for retaliation on behalf of the worker. In this case damages are limited to $1,000 per violation. Someone who witnessed the retaliation is also able to sue. The state is required to proceed in this case unless the court and the attorney general both give written permission to dismiss the case. The state can intervene and take over the case upon showing of good cause. Witness gets 35% of the penalties awarded to the state (lawsuit is on behalf of the state in any case) and 15% if the state takes over.

Employers are required to post notice of agricultural workers rights (not the unionization right or the minimum wage or overtime rights, but the rest of it) in a conspicuous location, including in employer-provided housing, in all places where notices are typically posted, and electronically, including by e-mail, if the employer uses that method of communication. Employers are required to provide training to workers concerning signs of heat stress and encourage workers to take water breaks as needed and avoid heat stress or overexertion. State is to create rules around protection from heat-related stress illness and injury when the temperature is above 80 degrees with discretion to adjust based on environment, exposure time, acclimitization, and metabolic demands of the job.

Bill does not forbid occasional or intermittent hand weeding or hand thinning in a stooped, kneeling, or squatting position so long as it is incidental to weeding operations or seeding, planting, transplanting, or harvesting by hand or with a hand tool. Any worker engaged in hand weeding or hand thinning must be given an extra five minute rest period, at a rate of 15 minutes per four hours worked. Employers must provide gloves and knee pads to workers engaged in hand weeding, hand thinning, or hand hot-capping.

Bill provides avenue for suing for failure to adhere to agricultural workers rights, including from whistleblowers or key service providers who were denied access. If they win, courts may order injunctive relief, greater of actual damages or $10,000, and attorney fees.

Bill provides additional protections to workers during a public health emergency. Those in multiple person employer-provided housing must have at least 100 square feet of sleeping quarters per employee and 120 square feet of common areas per employee (those in single occupancy units 80 square feet) as well as screened windows that open to the outside or an air filtration system. Each worker engaged in open-range production of livestock must be provided a single occupany mobile housing unit. Employers must routinely inspect housing to ensure it meets emergency state health guidelines. All employers must provide training to workers on safety precautions and protections for the emergency, including poster and pamphlets in English and Spanish and any other relevant languages. These must list the contact information for the Migrant Farm Worker Division of Colorado Legal Services and inform the workers on federal and state guidance for the emergency.

Bill also creates an Agricultural Work Advisory Committee of nine members. Committee is to gather and analyze data and other information regarding wages and working conditions of agricultural workers and report to the legislature each year, beginning in 2023. Committee is given sunset review repeal in 2031 (ensures the department of regulatory agencies will complete a thorough report with a recommendation on if the committee should continue and if any changes should be made to it).

Additional Information:

Employers may require visitors to a work site to follow protocols to minimize biohazards and other risks of contamination or for food safety or to reduce injury so long as the same protocols are generally applied to everyone.

Meal breaks must be, to the extent possible, at least one hour after a shift starts and one hour before a shift ends.

For witnesses to retaliation, they must notify the state by mail or e-mail before doing anything. If the state does not do anything within 60 days, then the witness can sue. They must present any settlement offer to the state before agreeing. The state cannot veto it, but it can present its position on the settlement in court. The witness can settle if the court has determined the settlement is fair, adequate, reasonable, and in the public interest. The state has 30 days to intervene in one of these cases. If they do, they can unilaterally settle without the permission of the witness, though the witness can remain a party to the case.

The committee membership is comprised of four people appointed by the executive director of the department of labor and employment, two people who have worked as agricultural workers and two who are advocates of workers’ rights, and five appointed by the commissioner of agriculture, three who represent employers and two from the Migrant Farm Worker Division of Colorado Legal Services. Terms are for three years and members are not compensated. They do get reimbursement for expenses.

Auto-Repeal: September 2031 for commission

Arguments For:

Bottom Line:

The origins of agricultural exemptions to the minimum wage in this country date back to the 1930s and are racist. These exemptions have been chipped away at for years, but not in Colorado which has relied on federal law
Agriculture is one of the most hazardous industries in the country, with high injury and death rates and agriculture workers are twice as likely to live below the poverty line than the average worker
Federal exemptions to the minimum wage rule are not fair, open to abuse, and can drag down wages for other industries
Increasing pay and working conditions for these workers will not cause large increases in food costs

In Further Detail: The first thing to understand is how we are here in the first place. Why is there an industry that is exempt from minimum wage requirements? We know restaurants and other tip-heavy industries can get around minimum wage because of the tips, but that is not the case here. The answer lies in the 1930s and the New Deal, which was a wide coalition that included some pretty racist folks (even by 1930s standards). It is fairly common knowledge that social security was written so as to initially exclude people of color, well the same thing happened with agriculture and the minimum wage. Over time, these exclusions have been whittled away at, at least federally. Some states have also jumped into the fray, most notably the state with the largest agriculture industry in the country: California. They did something very similar to this bill, including the overtime requirements, and you won’t believe it, but the sky has not fallen and you are still enjoying tons of Californian agricultural products (New York does this too and Washington state was just forced to by the courts). You might not have even been aware this happened because wages are a tiny part of the prices we pay for food. National Geographic reported in 2016 that the share of the average American’s annual grocery bill for wages was just $45. If you boosted wages by 47%, your grocery bill would only rise $1.76 (again on average). So we can dispense with the argument that food prices will skyrocket. This is because farm labor is fairly efficient: you are talking about picking and harvesting thousands of pounds of food. And fundamentally, what we are doing right now is just unfair and exploitative. We all need the food these workers help provide us. Yet we are fine with paying them less than we require of almost every other industry in the state? About 30% of agriculture workers live below the poverty line in this country, compared to the 16% average. In an industry that is in fact one of the most dangerous ones. According to the federal government, every day in this country 100 agricultural workers suffer an injury that will cause them to miss work. The death rate in the industry as a whole is 24.7 deaths per 100,000 workers, making it the 7^th most dangerous industry in the country. The ban on short-hoes and using long-hoes like short hoes is part of this: all of the stooping required causes terrible long-term back problems and is not fundamentally necessary to the work (can be done in a standing position). This by the way is nothing new, court cases and wide-spread knowledge of the damage the short-hoe does dates back over 50 years. So we need to improve working conditions to ensure safety and we need to pay well. For the federal exemptions we are eliminating: why do workers who don’t work as often or who get paid by the piece have to earn less? We don’t have minimum wage exceptions for other industries based on their size. If you pay by the hour, you need to pay a living wage, regardless of if the person works a little bit or a lot. The ranching payment needs to be handled differently. These folks deserve minimum wage protections (part of the job is essentially being on call 24/7 in case of problems) but are difficult to pay by the hour because they are frequently in remote areas and are hard to track. So a weekly minimum payment matching our minimum hourly requirement makes the most sense. As for overtime, again, this is a matter of basic fairness. Yes the agricultural industry is seasonal and features short bursts of activity. So do a lot of other industries, like construction. The exact same reasoning can be applied to unions, why are agricultural workers exempt? Again, California has had unionized agricultural workers for over 50 years and the sky has not fallen. For all of these wage-related considerations, a key element to remember is that an entire industry with depressed wages can bring down wages across the state. Wage competitiveness is a driving market force. If large numbers of workers can be paid less, that makes it less likely that others will need to pay more to make their job more attractive.

Arguments Against:

Bottom Line:

We are upending enormous swathes of practice in a key industry in the state during an economic down-turn, all going far beyond what the federal government has deemed acceptable for years in a unique industry
A large part of the danger in the industry comes from transportation issues, namely tractors
Federal exemptions make sense and should be kept
There is no debate this will either lead to higher prices or closed farms

In Further Detail: This takes a sledgehammer to an industry that is critical to our state’s economy, during a time of economic peril for many. This industry is quite unique in its reliance on seasonal migrant labor combined with in many cases providing housing for the laborers. The intensity of work required during harvest time is pretty much unmatched in other industries, even those that are also seasonal. So the federal government has recognized that overtime pay doesn’t make sense in this situation and that small farms or very short-term labor should not compensated at minimum wage standards. Certainly family members should be able to work on the farm for less than minimum wage but this bill sweeps that aside too. In Colorado, we built exceptions to state minimum wage laws for this industry because we recognize that getting far ahead of federal wage requirements could make it harder for Colorado farmers to compete on the national and international stage when they have to compete against other states (more to this industry than just California) and other countries like Mexico. We forbid unionization for many of the same reasons and also because we cannot afford widespread crop loss during a potential strike. For the danger of the industry, there is no denying it is hard work. But most of the danger for death and serious short-term injury comes from motorized vehicles, namely tractors, which is the case with many of the most dangerous industries in this country. It is not clear that mandated breaks and shade would overly affect this. Its just at times dangerous work, like other industries on the top ten list. Finally, no one would dispute that forcing wages to nearly double and forced overtime will do one of two things: it will either drive some farms out of business or it will increase food costs as they pass along these increases to us. The exact amount may not seem like a big deal to some, but for families that are struggling to put food on the table every dollar counts. Again, we are still in a period of economic trouble in this state.

SB21-116 Prohibit American Indian Mascots (Danielson (D)) [Benavidez (D), McLachlan (D)]

PASSED

AMENDED: Significant

Appropriation: None
Fiscal Impact: None at state level, schools that have to change will have costs associated with it

Goal:

Forbid any public K-12 school or institution of higher learning in the state from using an American Indian mascot unless they already have an agreement with a federally recognized American Indian tribe, in which case the school is expected to honor the agreement. The tribe may revoke the agreement at any time. If an agreement is revoked the school has one year to change its name. New agreements require the permission of a tribe, a curriculum at the school that teaches American Indian history and supports a positive cultural exchange, and the mascot must be named after the tribe, which is the sole discretion of the tribe to determine. Schools that violate this law must pay a $25,000 fine for each month they remain in violation, which goes to the state education fund. All must be in compliance by June 2022.

Description:

State must identify all schools that are out of compliance with the law once it is signed, notify them, and post them on its website. Schools can apply for funds from the capital school construction fund to make changes needed to comply with law.

American Indian mascot is defined as: a name, symbol, or image that depicts or refers to an American Indian tribe, individual, custom, or tradition that is used as a mascot, nickname, logo, letterhead, or team name for the school.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

These names and mascots do actual damage right now to American Indian kids and to the views held by non-American Indians of American Indians. They reinforce stereotypes
A massive number of American Indian organizations and the National Congress of American Indians supports bans like this: we should listen to the actual people being affected instead of telling them how they should feel
This is part of a nationwide movement, with multiple professional sports teams changing their names and other states implementing similar bans
At least 25 schools in the state have these names and mascots and seem unwilling to change them voluntarily, despite multiple opportunities and the recommendation of a 2015 state commission to do so. The bill provides exceptions for schools with agreements with tribes

In Further Detail: This is not about political correctness or recognitions of past wrongs. These mascots and nicknames are doing actual damage right now. Multiple studies have shown that American Indian mascots and nicknames have negative impacts on the self-esteem of American Indian kids who are exposed to them. The mascots and nicknames with more negative associations (like the Lamar Savages) also lower the opinion of American Indians among non-American Indians. While the more positive or neutral mascots and nicknames do not increase the opinion of American Indians among non-American Indians. The mascots and nicknames reinforce stereotypes of primitive, aggressive, and sometimes cartoonish people: from Eaton Fightin’ Reds large nosed caricatures to the Lamar Savage’s “Chief Ugh-Lee” mascot. In 2015 the state studied the issue with a commission composed of American Indians who visited any school that wanted to participate. Only four chose to do so, and the commission recommended to completely eliminate American Indians as mascots from our schools. Very few schools have done so voluntarily, despite mounting public pressure that has led to professional sports teams changing their names and logos. The National Congress of American Indians and over 1,500 American Indian organizations have called for a ban like this. The opinions of the actual people being depicted and affected by these names and mascots should count the most. Maine and Oregon have already enacted similar bans and other states are moving too. At least 25 schools in Colorado still have these names. It is time to change them. The bill also provides exceptions for schools that already have agreements with tribes (or that make them in the future) like Arapahoe and Strasburg High Schools.

Arguments Against:

Bottom Line:

These names and mascots are not meant to be derogatory but instead represent years of tradition of respect and pride in the name
There are American Indians who are not opposed to these names and mascots, including some that attend these schools
Multiple schools in the state have made agreements with American Indian tribes on using their names and mascots in ways that bring greater true cultural awareness to the kids at the schools
This will cost these schools money, in some cases quite a bit, in a time when resources are scarce

In Further Detail: These names and mascots are not meant to be disrespectful, in many cases they are actually meant to honor American Indians. Some of these schools have decades of tradition built into their names and mascots and use them a badge of honor, not of derision. Lamar graduates are proud to be Savages. There are American Indians who have gone to Lamar and are proud of the name. And that occurs nationally as well, there are American Indians who are not opposed to the use of these names and mascots. There are also some schools that have existing agreements with American Indian tribes about their mascots. The Arapahoe High School Warriors are endorsed by the Arapaho Nation and have been since the 1990s. The school is infused with true cultural awareness of Arapaho culture. Strasburg High School just came to a similar agreement in 2018, changing their logo in the process to one drawn by a tribe member. This is also going to cost these schools money, in some cases not an insignificant amount, at a time when resources are scarce.

SB21-132 Digital Communications Regulation (Donovan (D))

NOTE: This bill is no longer a Mega bill but is kept here for posterity's sake

KILLED BY BILL SPONSORS

AMENDED: Very Significant (category change)

Appropriation: None
Fiscal Impact: None

Goal:

Create the Digital Communications Division in the department of regulatory agencies to regulate digital communications platforms (like Facebook and Twitter). These platforms must pay a fee each year to register with the division and promise not to engage in unfair or discriminatory digital communications practices (see Description). Anyone claiming to be aggrieved by such a practice can file a complaint with the division, which then investigates. People can sue in court once they exhaust all administrative avenues with the division Require the joint technology committee to study consumer protection concerns related to digital communications platforms like Facebook, Twitter, and YouTube. May consider how these platforms deal with people who use them to: promote violence, undermine election integrity, disseminate intentional disinformation, or directly attack protected minority groups. May consider free speech concerns, how consumer complaints could be addressed by the state, and these platforms use of consumer data, including face-recognition software. Report must be submitted to rest of legislature by January 2022.
Creates the digital communications commission within the division, which adjudicates all cases referred by the division, sets the fee for digital communications platforms (which must be the right amount to cover the division’s costs), and does research into unfair and discriminatory digital communications practices and attempts to educate the public and provide recommendations on how to reduce them

Description:

The precise list of actions the commission is trying to reduce and the division can investigate include:

Unfair and discriminatory practices, such as those that promote hate speech; undermine election integrity; disseminate intentional disinformation, conspiracy theories, or fake news; or authorize, encourage, or carry out violations of users’ privacy
Business, political, and social practices that target users for the purposes of collecting and disseminating personal data, including sensitive data; profiling users based on collected personal data; or selling or authorizing others to use users’ personal data to provide location-based advertising or targeted advertising
The use of facial recognition software and other tracking technology

To qualify for this law and have to register with the state, a company must: facilitate communications between users and allow them to create and share content online; allow businesses to advertise to Colorado residents through the platform using geolocation technology; conduct business in the state with either at least 100,000 users or 25,000 users if it derives revenue from or receives a discount on the sale of personal data. Does not include marketplace facilitators like eBay or other service-oriented platforms like Uber or Lyft or short-term rental platforms like AirBnb.

Platforms that do not register commit a class 2 misdemeanor punishable by fines of up to $5,000 per day.

If someone initiates a complaint to the division, it must notify the company of the charge and promptly investigate. It may subpoena witnesses and compel the production of records. If the division determines probable cause exists, it will forward the complaint to the commission. If it determines there is no probable cause, it will dismiss the complaint. The person who made the complaint can appeal within 10 days. This individual has 90 days from the end of the administrative process (either after the initial decision if there is no appeal or after a failed appeal) to file a civil action.

The commission sets a hearing for cases with probable cause. The commission can retain administrative law judges or request the services of one from the governor. Hearing must be within 120 days. Parties may request extensions for good cause, not to exceed 90 days each (so maximum of 180 days if both parties ask). Commission to run the hearing as required of all administrative hearings in the state, and may issue cease and desist orders and require platforms to take actions (this is left open-ended).

The commission or members of the commission or the attorney general may also bring complaints which must then be investigated by the division. Remedies for these complaints are limited to equitable relief (no damages).

The commission is also tasked with recommending policies to the governor and the legislature and to people in the private sector and to cooperate with public and private agencies and organizations to plan and conduct educational programming. Commission members do receive per diem and can be reimbursed for expenses. It may use division staff to assist in its work.

Entire law (division and commission) expires with sunset review in September 2031.

Additional Information:

Sensitive data is personal data that reveals race or ethnic origin, religious beliefs, mental or physical health conditions, sex life or sexual orientation, citizenship or citizenship status, or genetic or biometric data.

Targeted advertising is display advertising that is selected for a consumer based on their activities across non-affiliated websites or applications. Does not include advertising in response to a request from the consumer for information.

Members of the commission and the division are immune from civil liability for actions taken in good faith in the course of their official duties.

Commission consists of: chief information officer of the office of information technology, the attorney general, and five members appointed by the governor: two representing the business community with no direct financial affiliation with a digital communications platform (one must represent a business with less than 50 employees), and three from the public who do not have a direct financial affiliation with a digital communications platform. Governor must strive to provide socioeconomic, political, and geographic diversity in the commission’s membership, ensuring that at least two of the appointees are from the western slope or eastern plains. Members serve for four year terms and can be removed by the governor for misconduct, incompetence, or neglect of duty.

Auto-Repeal: September 2022

Arguments For:

Bottom Line:

These platforms are out of control and the biggest single source of divisive vitriol in our public sphere. They have proven they cannot regulate themselves and the federal government seems uninterested in helping in a meaningful way. This bill as originally written may not have been the way to address this problem but we do need to look into it. So we should have the joint technology committee do a deep dive in between legislative sessions to explore what could be done
So this bill instead treats these companies like other businesses in this state with the potential to cause harm: we regulate them, investigate wrongdoing, and issue punishments
Targeted advertising is an intrusion into our privacy and these companies can exist, sell ads, and make money without it
The bill is narrowly tailored to leave out just about everyone except the big platforms: websites with just comment sections don’t have to worry
We are talking about speech on a private business platform, so first amendment concerns do not apply

In Further Detail: We all know these platforms are out of control and the biggest single source of divisive vitriol in our public sphere. They do a poor job of regulating themselves and are a active danger to the health of our democracy. It is also clear that if we wait on the federal government to do something we may be waiting for a long time. So this bill provides something we can do: treat these businesses just like we do any other business in the state that has the potential to harm the public: we register and regulate them. The definitions are clear enough that only truly large platforms that are used for monetary gain will qualify, so websites that just have comment sections do not have to worry. Then we proceed just like any other registered business: we investigate claims made against it and adjudicate them. Now, we are bit limited in that we can’t force the businesses to close or yank their registration but we can use our administrative (and civil court process if necessary) to hold them accountable. And it certainly seems possible for these companies to do a better job in these areas, if they can serve amazingly targeted ads based on random bits of data surely they can do a better job controlling hate speech and fake information on their platforms. For their monetization schemes involving our personal data, this too is an area where these companies can still make money selling ads. Facebook doesn’t need to be one of the most profitable companies in the world, and to be clear, they can and will still sell advertising. We just want them to stop using our personal data to do it. No one should expect this bill to solve these problems, but it might just force some companies to start doing a better job of regulating themselves. As for first amendment concerns, no one has the first amendment right to say whatever they want on Twitter (or any other digital platform). They are private businesses free to regulate speech however they’d like. While it is true that the government is an intervening body here, we are merely holding a private business accountable for the actions on its platform. For decisions made by the commission, it is actually an administrative law judge making the rulings on cases.

Arguments Against:

Bottom Line:

The first amendment clearly does not allow government regulation of speech. What the bill proposes is to allow the government to regulate speech on these platforms—that they are private businesses is irrelevant, it is still the government regulating people’s speech
The commission is a powerful arbiter of speech (if not the ultimate judge) but it is small, mostly appointed by the governor, and nearly completely lacking in required credentials or expertise in order to serve
Many of the bill’s key terms are undefined, such as hate speech, conspiracy theories, and fake news
The government should not be attempting to be the arbiter of truth
The solution to this problem will have to be federal in nature and will have to attack it the same way we solve other problems with lies in the media—legal liability

In Further Detail: First amendment concerns very much apply here because we are not talking about these private companies regulating their own speech. We are talking about forcing them to take down speech. That is government infringement on our right to speech, which violates the first amendment. That alone is enough, but the mechanisms in the bill are also concerning. This commission is to be an extraordinarily powerful arbiter of speech in the state but it is small, mostly appointed by the governor, and nearly completely lacking in required credentials or expertise. Many of the terms of the bill are undefined, like hate speech, conspiracy theories, or fake news. Being the arbiter of truth is a near impossible task and one the government should not be taking on itself. There unfortunately is no way for Colorado itself to take on this problem—it is going to require federal solutions including changes to the infamous section 230 law that is the legal shield for social media companies. Because the solutions to the problem lie in the same sphere as the solutions for problems with other media disseminating lies—legal liability.

Bottom Line:

This isn’t likely to work fast enough and may just be ignored. These large companies can easily pay a $1.8 million annual fine for ignoring us. And even if they don’t ignore us, if it takes half a year to have some sort of resolution, that isn’t going to help much at all to police this behavior. We aren’t even a half year removed from the 2020 election right now At least the bill would have done something to address this festering and growing problem. More study does nothing

SB21-137 Behavioral Health Recovery Act (Pettersen (D), Winter (D)) [Michaelson Jenet (D), Kennedy (D)]

PASSED

AMENDED: Very Significant

Appropriation: $8,057,614 in general fund money, $550 million in federal stimulus funds, $5.7 million in marijuana funds
Fiscal Impact: Beyond appropriation, $14.3 million next year and $6.5 million in annual spending

Goal:

Creates a cash fund to hold federal stimulus money and puts $550 million into the fund, then spends $99.3 million in the bill. For the rest of the money, the leadership from both parties of both legislative chamber is to create a task force to meet during the 2021 interim (after end of 2021 session and before start of 2022 session) to create a report with recommendations on how to spend the money to create transformational change in behavioral health care.

Create a temporary financial housing assistance program to people with a substance use disorder who have no supportive housing options and are either in treatment for their disorder or transitioning out of residential treatment into recovery. State is to set rules on maximum amount of assistance a person can get and maximum amount of time they can get it. The time rules must be clinically based. Funding must be prioritized for people entering into a recovery residence. State must report to legislature each year on the amount of assistance provided, number of people and entities that received the assistance, and duration of assistance for each person or entity. $4 million appropriated every year in perpetuity for the program
Requires state to develop statewide care coordination infrastructure for uninsured and people on Medicaid without available care coordination services. This must include a website and mobile application that serves as the centralized gateway for information for patients, providers, and care coordinators and that promotes access and navigation of services and supports. State must use a working group to help create this infrastructure which must include people with lived and professional experience. State must undertake a robust marketing campaign to drive awareness of the program. $26 million of federal stimulus money appropriated to program
Creates a workforce development program to increase the ability of the state to treat people with severe behavioral health disorders. This must include: an online training system and curriculum that will support a high-quality, trained, culturally responsive, and diverse behavioral health care workforce; fiscal incentives for low income individuals to obtain a degree in the field, with funding specifically targeted for rural areas of the state; training to certify for federal reimbursement for services; capacity-building grants; and attrition prevention grants. $18 million in federal stimulus money appropriated to program
Creates a county behavioral health grant program to provide matching grants to counties for expansion or improvement of local or regional behavioral health programs. Money can be used for: peer training, augmentation of direct therapy, acute treatment units, in-patient treatment programs, outreach and education, navigation or care coordination, capital investments in behavioral health center infrastructure, services for non-English speakers, culturally responsive and attuned services, suicide prevention and intervention, crisis response, withdrawal management, workforce development, supporting regional service delivery, or other purposes identified by state. No more than $1 million per grant unless two or more counties are involved in a regional effort. Direct service providers limited to 10% spending of money on adminstrative costs, and any entity that oversees a provider to 5%. Any money used on capital projects must demonstrate commitment to continued spending on project for at least five years beyond grant cycle. Grantees can use federal stimulus money as their matching funds. State is to prioritze applications with innovation or collaboration, rural and frontier counties, demonstrated needs showing community input, and ability to rapidly distribute grant money into community. $9 million in federal stimulus money appropriated to program. Program expires in July 2023
Appropriates $5 million in federal stimulus funds to the state to use for emergency resources to licensed providers to help remove barriers they face in treating kids in residential programs. State can set rules around the funding, including quality assurance monitoring, admissions, discharge planning, length of stay, appeals process for kids determined ineligible, and compliance with federal law (including family first law). Providers must agree to admit any child that is eligible and not discharge any child for being too severe a case (but the state must work with providers to transfer kids as needed). State must pay for direct costs of care for the child and coordinate with Medicaid for any kids covered by Medicaid. Any child referred to the program (and any provider can refer) must be screened for Medicaid eligiblity within 7 days. Providers must report to the state and the state to the legislature. Program expires in July 2025 but by September 2024 the state must recommend to the legislature how to provide necessary care on an ongoing basis (without all of this federal money)
Expands the AgrAbility project by providing funding to rural rehabilitation services to provide information, services, and research-based, stress-assistance information, education, suicide prevention training, and referrals to behavioral health care services to farmers, ranchers, agricultural workers, and their families. This program is run by Colorado State University and is currently set up to help people with disabilities or other physical challenges in agriculture. $900,000 appropriated per year in perpetuity to fund expansion
Appropriate $2 million in perpetuity to the State Department to address behavioral health disorders through public health prevention and intervention and to work with community partners, including local governments, to address behavioral health, mental health, and substance use disorder throughout the state. Money can be used for data collection, analysis, and dissemination activities related to behavioral health disorders, including community health assessments and improvement planning. $500,000 of the money may be used for administrative costs
Create a recovery support services grant program to provide grants to recovery community organizations to provide recovery-oriented services to people with a substance use disorder and a co-occurring mental health disorder (See Description for more detail). Grants to go through the designated managed services organization for the area, which also awards grants based on state created criteria. Must prioritize programs outlining a capacity to deliver services to meet the needs of diverse racial, cultural, income, ability, and other underserved groups. Each managed services organization must report to the state each year and the state must report to the legislature. $1.6 million appropriated annually in perpetuity for the program
Creates a regional health connector workforce program to be run by the University of Colorado. Program is to educate providers on evidence-based and evidence-informed therapies and techniques to enable providers to incorporate them into their practices, provide support and assistance to primary care providers and serve as a link between them and behavioral health services, including substance abuse treatment, educate providers about preventative medicine, health promotion, chronic disease management, and behavioral health services; and provide clear information to providers and the community on COVID prevention, treatment, and vaccines. $1 million in federal stimulus money appropriated to program
More in Description

Description:

Appropriates money to various behavioral health programs for the 2021-22 fiscal year:

$5 million in federal stimulus funds for jail-based behavioral health services
$5 million for a pilot program for residential placement of kids with high acuity physical, mental, or behavioral health needs
$3.8 $10 million for co-responder programs, Colorado crisis system services, housing assistance, and treatment for rural communities
$3.5 $10 million in federal stimulus funds to managed service organizations (same ones as mentioned earlier, that treat substance use disorder) and $3.25 million in federal stimulus funds to community mental health centers for unexpected expenses related to COVID-19
$2.5 million of marijuana cash funds to the K-5 social and emotional health pilot program
$2 million in federal stimulus funds for services provided to school-aged children and parents by community mental health center school-based clinicians and prevention specialists
$2 million in federal stimulus funds for behavioral health and substance use disorder treatment for children, youth, and their families
$2.7 million, of which $1.7 million is federal stimulus money and $1 million is marijuana tax money, to existing program in the health service corps fund to provide loan repayment and scholarships to behavioral health providers
$1.15 $2.2 million in federal stimulus funds million for the opiate antagonist bulk purchase fund and school-based health centers
$1 million for a mental health awareness campaign
$500,000 to the behavioral health professional matching grant program
$500,000 $250,000 in federal stimulus funds to managed service organizations for substance use screening, brief intervention services, referral to treatment, training, and supports
$500,000 in federal stimulus funds for community transition services for guardianship services for people transitioning out of mental health institutes
$500,000 $2 million in federal funds for the HIV and AIDS prevention grant program
$500,000 in federal stimulus funds for the early childhood mental health consultation program
$250,000 $200,000 for treatment and detox programs
$250,000 to mental health first aid for in-person and virtual trainings
$120,000 for the safe2tell program

Recovery support services grants can be used to

Offer engagement in activities focused on mental or physical wellness or community service
Provide guidance to these people and their families on navigating treatment, social service, and recovery support systems
Help connect with resources needed to initiate and maintain recovery along the four dimensions of recovery: health, home, community, and purpose
Assist in establishing and sustaining a social and physical environment supportive of recovery
Provide local and state recovery resources
Provide recovery support services to caregivers and family

For the recovery support services grant program, to be eligible a community organization must be a non-profit led and governed by representatives of local communities of recovery that organize recovery-focused policy advocacy activities, carry out recovery-focused community education and outreach programs, or provide peer-run recovery support services. Grantees must annually report: number of community members in the organization, detailed description of the organization’s advocacy efforts, any collaborative projects the organization has with other recovery organizations across the state, and any other information required by state.

Extend the medication-assisted treatment expansion pilot program through 2023 2024 and restores its funding from $500,000 a year to $2 $3 million. This is a program that provides grants to enable training of nurse practitioners and physician assistants to provide medication-assisted substance abuse treatment. Funding was cut last year from $2 million to $500,000. Was set to expire in 2022.

Requires managed care organizations designated by the state to provide treatment services for drug and alcohol abuse in a designated geographic area to notify a covered individual’s health care provider of approval of services for residential and in-patient substance use disorder treatment within 24 hours of submission request. Intensive residential treatment authorizations must be for at least 7 days and transitional residential must be for at least 14 days, unless the organization does not have sufficient documentation from the provider. If the provider and managed care organization disagree on the continuation of treatment, the organization must defer to the provider. It may request additional information from the provider on the rationale for continuation. Organizations must provide specific justification for each denial of continued authorizations for all six dimensions in the most recent edition of the ASAM Criteria. Requires the state to consult with managed care organizations to develop standardized utilization management processes to determine medical necessity for residential and in-patient substance use disorder treatment. This must incoprorate most recent ASAM criteria standards and align with federal Medicaid requirements. New processes must be in place by next year. Beginning this fall and then every quarter thereafter, organizations must provide to state average length of initial authorization and average length of continued authorizations for services, denials of initial authorizations and reasons why, and average response times to requests, including how many needed extensions due to documentation issues. By July 2022 state is audit 33% of all denials and report to legislature, including on any needed legislative changes. State is to contract with at least one third-party entity by July 2023 to serve as arbiter for external medical reviews requested by a Medicaid provider when there is a denial or reduction in for residential or in-patient treatment and all appeals have been exhausted.

Requires state to develop a statewide data collection and information system to analyze implementation data and selected outcomes in the early childhood mental health consultation program, designed to improve social, emotional, and behavioral outcomes of young children and not required to come online until July 2022. System is to identify areas for improvement, promote accountability, and provide insights to continually improve child and program outcomes. State must report to legislature in 2023 and then every two years on this program, including gap analysis of mental health consultant availability across the state and adjustments to better meet mental health consultant caseload. State must contract with a third-party consultant by August 2026 to conduct an evaluation of the program, with a report due to the legislature in January 2027.

Appropriates $750,000 from the marijuana tax cash fund in perpetuity for the center for research into substance use disorder prevention, treatment, and recovery support strategies (previously was $250,000 a year through 2024). Removes the 2024 sunset review expiration of the center. Requires the center to engage in community engagement activities to address substance use prevention, harm reduction, criminal justice system response, treatment, and recovery. The center must also utilize data from Medicaid, the state’s prescription drug monitoring program, the state’s TRAILS system for tracking abuse, the state’s immunization information system, the office of behavioral health, and birth and death records for its ongoing research into how to improve outcomes for families impacted by substance use during pregnancy. Previously the center “could” use state administered data sources. Bill also allows the center to use other state or non-state data sources. $75,000 appropriated in 2021-22 funds to this data program. Another $600,000 in 2021-22 funds to the center for education for health-care professionals, grant writing assistance, and PPE and telehealth supplies for the medication assisted treatment expansion pilot program.

Requires the University of Colorado to provide practice consultation services to health care providers who are eligible to provide medication for opioid use disorder, including staff training and workflow enhancement to encourage better patient screening, supporting communication strategies to patients and referral sources, and providing access to marketing materials. The program is also to provide stipends to providers who can prove they've adopted the services and provided medication to at least ten patients in the last year. $630,000 in federal stimulus money appropriated for the program, which expires July 2023.

Allows existing high-risk families cash fund to spend money on services for families with behaviorial health needs (previously was limited to kids with needs or parents with needs but not the entire family). Appropriates $3 million in federal stimulus funds to the fund.

Requires the state to use a competitive bidding process to select a recovery residence certifying body to certify recovery residences. State is already required by law to certify recovery residences which must meet certain standards (again already established). The certifying body must also educate and train recovery residence owners and staff on industry best practices. $200,000 appropriated annually to achieve this.

Requires state to contract with a non-profit primarily focused on serving agricultural and rural communities to provide vouchers for people living in rural and frontier communities in need of behavioral health services. Only licensed behavioral health providers with training on cultural competencies specific to the state’s agricultural and rural community lifestyle can be used. At least 60% of the money in the contract must be used for direct care. The non-profit can use the rest to develop materials and train behavioral health care providers on the cultural competencies needed to work with these groups. Contract is for $50,000 a year and is appropriated in perpetuity.

Require the department of corrections, subject to available funds, to offer at least two doses of an opioid reversal medication (must be FDA approved) to those who were treated while in custody for an opioid substance use disorder when they are released.

More in Additional Information.

Additional Information:

Requires mother of every perinatal child (immediately before and after birth) in Medicaid to be able to get screening for perinatal mood and anxiety disorders. Must apply so long as the child is in Medicaid (mother’s status does not matter).

Sunset review expiration removed from the program to increase public awareness concerning the safe use, storage, and disposal of opioids and the availability of naloxone and other drugs to combat overdoses. Was scheduled to expire in September 2024. Removes repeal of the building substance use disorder treatment capacity in underserved communities grant program, was set to repeal in July 2024. Harm reduction grant program cash fund changed so it can keep its money after September 2024 and continued indefinitely. Maternal and child health pilot program funding continued.

Continues requirement that podiatrists adhere to limitations on prescribing opioids.

The statewide data collection for the early childhood mental health consultation program must place the least burden possible on the mental health consultants in the program. State must incorporate the variability across diverse settings and populations in selecting data.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We are currently dealing with a double whammy of cut-backs from last year’s budget due to fears that COVID would decimate what was available to spend and massive increases in need due to COVID
Fortunately we have the money to spend thanks to better than expected tax revenues. Instead of a massive budget crisis we have a surplus (because we planned for a massive crisis) and we have massive amounts of federal stimulus money
Like all crises, places that were already struggling were hit the hardest, so it is appropriate to focus more attention on substance use disorder needs and rural areas
We of course also already had a crisis of behavioral health care, so it is very appropriate to spend the large amounts of federal stimulus money on attempts to build capacity into our system, both in terms of people (providers) and infrastructure
The two new programs attempt to halt the negative cycle of homelessness and substance use disorder and provide people getting out of treatment a better shot at staying clean and sober

In Further Detail: This a smorgasbord bill so we won’t go point-by-point but in general we know two things right now about behavioral health in the state: we had to cut funding from some programs last year to make our budget work and COVID-19 greatly increased the need for behavioral health services. All sorts of needs went untreated and people developed new needs due to the events of the last year. So we have a hole to dig out of and fortunately, we have the money thanks to better than expected recovery of tax revenue from COVID. Like all crises, the places that were already struggling were hit the hardest. A big part of that is capacity in the entire behavioral health system, so it is appropriate to put huge chunks of federal stimulus funds into capacity building (both in terms of people and infrastucture) and money into emergency funding to tide us over to better solutions. It is also appropriate to put quite a bit of attention on substance use disorder needs, particularly in rural areas. On that front, the two new programs in this bill dealing with housing and supportive services for those getting treatment for substance use disorder are actually altered versions of programs that were in a bill last year that, like so many others, died in the shortened COVID-affected session. The idea here is pretty simple: homelessness and behavioral health issues are a self-reinforcing cycle. People with mental health needs have trouble, lose housing, and then their mental health needs become worse as they are forced to fend for themselves on the street. If they get treatment, once they are back out. They have trouble getting housing and end up on the street again, and the cycle continues. This costs communities tremendous amounts of money and contributes to recovery failure and involvement in the criminal justice system. Supportive services are a way to step in and stabilize housing for this population in an attempt to break the cycle. Unfortunately there are many communities that simply don’t have the infrastructure to access funding that is available for this exact purpose and different communities have different needs, so we need a broad scope of how to assist them. Much of the rest of the bill is either clarifying existing programs, providing supports to existing programs that need firming up (like certifying residential facilities), permanently extending programs, and yes, spending money in a bunch of different areas.

Arguments Against:

Bottom Line:

The two new programs are rather vague in scope (the bill last year had much more clearly defined rules) and the grant program appears to be too focused on advocacy
We have a massive housing problem in the state and limited state resources—we should be attacking housing supply
A lot of the programs whose expiration were removed were set for sunset review. That doesn’t mean that they weren’t worthy, it just meant we wanted them examined in detail to ensure that they were doing their intended purpose

In Further Detail: The two new programs in the bill are pretty vague. The state is to provide housing assistance but the actual amounts and time of assistance are left for the state to decide. The services grants are pretty undefined, in particular the section on helping on the four dimensions of recovery. And the reporting requirements of that grant program are a bit troubling: they focus on what advocacy efforts these community organizations are doing instead of what supportive services they have provided. That bill last year that was in a similar vein focused more on the criminal justice system and was designed to help those with behavioral and mental health disorders and those who were experiencing or at risk of experiencing homeless avoid getting tangled or retangled with the justice system. On the concept in general, we have limited state resources and a massive housing problem. Putting resources not toward housing but to create programs to help access housing is not the best way to spend our funds to attack homelessness. For the many programs that were permanently extended, several had sunset review clauses. We use sunset review not because we are doubtful that a program should exist, but because this provides an x-ray into the program. Yes to see if it should continue, but also to see what needs to be improved. We use sunset review for a host of things, including stuff that is obviously going to be continued like licensing doctors. Taking it away here means no one will be forced to examine these programs to see how they are doing.

The programs using federal stimulus money also suffer from the same lack of definition. That is a lot of money to spend with very few guiderails in place.
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SB21-175 Prescription Drug Affordability Review Board (Jaquez Lewis (D), Gonzales (D),) [Caraveo (D), Kennedy (D)]

SIGNED INTO LAW

AMENDED: Moderate

Appropriation: $730,711
Fiscal Impact: About $800,000 in year one, $480,000 a year after that

Goal:

Create an independent review board that can establish upper payment limits for prescription drugs the board deems are unaffordable for Colorado consumers. Maximum of 12 drugs per year in 2022, 2023, and 2024. Any upper payment limits take effect six months after announcement. State must gather pricing information for the board each year, which involves insurers reporting to the state its top 15 prescription drugs in numerous categories in terms of end-user payments under its benefit plans (see Description) and its wholesale prices to pharmacies (again see Description). This pricing information is to be posted publicly (except for redacted proprietary information)
To be deemed unaffordable, brand name drugs must either have an initial wholesale cost of $30,000 or more or an increase in wholesale cost of $3,000 10% or more during the last year. Both figures are for a year’s supply or a course of treatment that is less than a year. Biosimilar drugs (similar to generics but created slightly differently) must have a wholesale cost that is not at least 15% lower than the corresponding brand name drug. Generics must have a wholesale cost of $100 or more for a full supply as recommended by FDA (either 30 days, less than 30 days, or just one dose if the FDA does not recommend a finite dosage) and a wholesale acquisition cost increased by 200% or more during the past year. All pricing is inflation adjusted
For unaffordable drugs, the board first decides if a full affordability review is required (see Description for this full process). If the board decides to set a maximum price, it must follow a methodology set by rule that considers: cost of administering or dispensing the drug, cost of distributing the drug to consumers, impact on safety net providers if the drug is available under federal Medicaid program 340B for hospitals, the status of the drug on the FDA shortage list, and other relevant costs. Board must consider impact on older adults and not value their lives less than others. Self-funded health benefit plans (where the employer is in essence the insurer) are exempt from maximum costs but can opt-in fi they wish. Decisions are appealable to the board and if the appeal is denied, can be appealed in court. If manufacturers decide to stop selling their drug in Colorado because of this decision, they must give the state and each entity in the state the manufacturer has a contract with at least 180 days notice
If a manufacturer refuses to make a drug available, individuals can request expidited judicial reviews to gain access to the drug at the old price. If the court agrees, the manufacturer can sell the drug to that person at the old price
The bill also creates the Colorado Prescription Drug Affordability Advisory Council to help the board make these decisions
Any savings created by setting a maximum limit to an insurer must be used to lower premium costs. They must verify this with detailed annual reporting to the state
Cannabis-based prescription drugs are excluded

Description:

For drugs purchased by consumers under their plans, insurers must report: most expensive drugs in the previous year by unit price and by total plan spending, the top 15 that increased the most over the previous year as a total of plan spending, the top 15 that caused the greatest increases in insurer premiums, the top 15 most used drugs that had a rebate from manufacturers, the top 15 with the highest rebates from manufactures (by percentage of total cost), and the top 15 with the largest rebates from manufacturers (by dollar amount).

For wholesale pricing to pharmacies, insurers and pharmacy benefit managers must report the average wholesale price paid, broken down by insurance group size category (individual, small biz, large biz): brand name drugs purchased from retail pharmacies, generic drugs purchased from retail pharmacies, brand name drugs purchased from mail order pharmacies, generic drugs purchased from mail order pharmacies, and prescription drugs administered by a practitioner, administered in an in-patient hospital setting, and administered in an out-patient hospital setting.

To decide if a drug needs an affordability review, the board must evaluate the class of drug and whether there are other therapeutically equivalent drugs for sale, evaluate aggregated data, seek input from the advisory council, seek input from affected patients and caregivers, experts with scientific or medical training relating to the drug in question, and consider the average patient’s out-of-pocket cost for the drug.

In an affordability review, the board must consider:

Wholesale cost of the drug
Cost and availability of therapeutically equivalent alternatives
Effect of the price of the drug on access for Coloradans, including the relative financial effects on health, medical, or social service costs compared to baseline effects of existing therapeutically equivalent alternatives
Typical patient co-pays or cost shares for the drug
Any other information the manufacturer, carrier, pharmacy benefit firm, or other entity chooses to provide. This can include life-cycle management, the average cost of the drug in the state, market competition and context, projected revenue, cost-effectiveness of the drug, and off-label usage of the drug. Board cannot use any methodologies that discount the value of someone's life due to their age or disability

The board can also consider pricing in other states and countries to the extent it can acquire the information. It can request this information from manufacturers as well. There is no mechanism to require the manufacturers to divulge the information.

In general board meetings are public meetings and the bill requires all decisions made on doing an affordability review, votes on establishing upper payment limits, and final decision to be made in public without exception. The board can meet privately in executive session only to consider information that is proprietary. Recordings of these sessions are not permitted if doing so would divulge the information and minutes from the sessions cannot include the proprietary information.

Proprietary information is subject to non-disclosure agreements. Carriers and pharmacy benefit managers can also ask for redaction of information they claim is proprietary in their annual reporting requirements. The commissioner of insurance can only disclose redacted information as is required by Colorado open records law and to employees of the division as necessary.

The board consists of five members appointed by the governor and confirmed by the Senate. They must collectively each have experience and expertise in health-care economics and clinical medicine. Members serve for three year terms. Individuals under consideration for the board must disclose any conflict of interest (see Additional Information for full conflict of interest definition) and cannot be an employee, board member, or consultant of: a manufacturer or trade association of manufacturers, an insurer or association of insurers, or a pharmacy benefit manager or trade association of pharmacy benefit managers. All conflicts of interest for board members must be publicly posted online.

The board can contract with a third-party to help carry out its duties and hire staff. Third-party must agree not to release any information it obtains through its work with the board and must disclose any conflicts of interest to the board. Staff members are not permitted to see proprietary information gathered during affordability reviews. Attorney general also to assign an assistant attorney general to provide legal counsel to the board. They must also disclose conflicts of interest. Everyone associated with the board, including staff and contractors, must recuse themselves from situations in which they have a conflict of interest.

The board can accept gifts, grants, and donations to carry out its work (goes to state treasurer to place in board’s operational fund) but it cannot accept any that would create a conflict of interest or appearance of one. All board members, staff members, contractors and their immediate families are barred from accepting financial benefits or gifts, bequests, or donations of services or property that suggest a conflict of interest or have the appearance of creating bias in the board’s work.

Council members must also disclose conflicts of interest (which are also posted publicly) and must also meet in public except for meetings of three or fewer members to gather and understand data or to establish, organize, and plan for the business of the council. Council members are not required to recuse themselves when they do have a conflict of interest. Except for the executive director of the department of health care policy, council members are appointed by the board.

Bill is silent about if board members or council members can receive compensation or reimbursement for expenses for their work.

Violating the upper payment limit established by the board carries a fine of $1,000 per violation. Failure by manufacturers to provide proper notification before exiting the state carries a fine of no more than $5,000.

Board must report annually to the governor and the legislature, including number of drugs subjected to an affordability review and the outcome of the review (including the maximum payment set by the board), as well as other information.

Entire program is set for sunset review repeal five years after the first upper payment limit is established.

Additional Information:

Conflict of interest is defined as an association, including a financial or personal association, that has the potential to bias or appear to bias an individual’s decisions in matters related to the board or the advisory council or the conduct of the activities of the board or the advisory council. Includes any instance where the individual could receive a financial benefit from a board action, or a financial benefit from an item being studied by the board. This includes increases to stock values held by the individual.

Board must meet every six weeks and is exempt from the state procurement code. It is also exempt from requirement to complete thorough reporting to state on any grants it receives.

Parties have 60 days to appeal the board’s decision. Board has 60 days to come to a ruling after an appeal. Judicial review can come 60 days after board’s decision if there is no appeal.

The appointed members of the council are to the extent possible, reflect the diversity of the state including race, ethnicity, immigration status, income, wealth, and geography. At least one council member must reside on the eastern plains and one must reside on the western slope. To the extent possible, each congressional district should have a council member.

13 14 members are appointed as follows:

Two who are health care consumers or represent health care consumers
One representing a state-wide health care consumer advocacy organization
One representing consumers with chronic diseases
One representing a labor union
One representing employers
One representing carriers
One representing pharmacy benefit management firms
One representing health care professionals
One employed by an organization that performs research on prescription drug pricing
One representing brand name drug manufacturers
One representing generic drug manufacturers
One representing pharmacists
One representing wholesalers

Every member of the council must have knowledge at least one of the following subject matter areas:

Pharmaceutical business model
Supply chain business models
Practice of medicine or clinical training
Health-care consumer or patient perspectives
Health-care cost trends and drivers
Clinical and health services research
Colorado’s health care marketplace

Counsel to meet at least once every three months.

Board report to the state must also include: publicly available data on price trends, number and dispositions of any appeals or judicial reviews of board decisions, summary of all appeals made to board, description of each conflict of interest disclosed to the board during the previous year, description of any violations of the bill’s provisions and any enforcement actions taken, impact of upper payment limits on providers and pharmacies, and patients' ability to access drugs and any recommendations for policy changes to increase affordability of prescription drugs in the state.

Auto-Repeal: Five years after first upper payment limit, with sunset review

Arguments For:

Bottom Line:

This is life and death for many people and yet increasing numbers of Coloradans cannot afford their prescription medication without making cuts in places like food and housing. As many as 1 in 3 struggle to fill their prescriptions
We pay vastly more for prescription drugs than most other similar nations
The negative impacts from these high-priced drugs are enormous, from health problems not being treated to financial difficulties to money bleeding out of the state’s coffers
This is not a normal industry and should not be treated like one: people do not have the normal purchasing decision power to simply forgo expensive options
The board created by this bill is independent, discloses conflicts of interest, only acts in egregious cases, and only acts after due deliberation. Its decisions are appealable in court
The pharmaceutical industry is one of the most profitable industries in the world, raking in $1.9 trillion in net income from 2000 to 2018 (that’s $105 billion a year on average). They’ll be just fine

In Further Detail:

Many prescription drugs are life or death for the people who need them. And yet increasing numbers of Americans are forgoing these medications because they cannot afford them. According to a state report about 11% of state residents did not fill a prescription because of cost in 2019 and that was before the pandemic. Estimates are now that as many as 1 in 3 Coloradans struggle to afford their prescription drug medication by skipping doses, cutting pills, or leaving prescriptions unfilled. State Medicaid spending grew by a whopping $435 million from 2014 to 2019 and is now over $1 billion per year. And there is another part of this story that we all already now: we pay vastly more for prescription drugs in the United States than people do in other similar nations. The Colorado Consumer Health Initiative has found that difference can be as high as 65% to 80% more money coming out of our pockets for the exact same drug. All of this has enormous detrimental impacts to our state. Health problems are not treated properly, which leads to increased costs down the line and increased adverse results including premature death. Money drains out of every corner of our state, including the state government, to pay for higher prices when the drugs are used. Families are faced with decisions about which basic necessities to forgo in order to pay for their prescriptions. This industry is not a normal one. We cannot simply decide to not buy a drug if we decide it is too expensive or drop down to some other less pricey model like a television. It should therefore not be treated like a normal industry. This bill sets up an independent final arbiter of excessive drug pricing. The board is to operate with complete disclosure of potential conflicts and look out for the best interest of Coloradans. It only examines egregious cases of price increases and then only acts after due deliberation and almost entirely in public. Its decisions can be appealed in court. Any cost savings from board decisions come to consumers, not insurers. Pharmaceutical companies will still be able to make profits, as they do all over the world. They will not be stopped from researching new lifesaving drugs. They may not be one of the most profitable industries in the entire country, as numerous studies have determined they are right now, with profit margins in excess of 20% in a particular year not unusual for the largest companies. The 35 largest pharma companies brought in $1.9 trillion in net income from 2000-2018 with profit margin of 14%. They’ll survive just fine. We are done being the profit center for these companies while they charge the rest of the world fairer prices. On the concern about future research, studies have demonstrated that the revenue generated by drugs in the rest of the world (at non-exorbitant prices) cover pharma research and development costs easily. In 2015 the top 15 drug companies spent $76 billion on research and development. The revenue they brought in simply from the difference in US pricing and the rest of the world (the difference not the total), was $116 billion. That’s about $40 billion in pure profit and that implies a best case scenario for the pharmaceutical manufacturers: that pricing at the level of the rest of the world simply doesn’t cover the cost of producing a drug. That claim is dubious because we already know that pharma companies inflate the average cost of producing a drug at around $2.6 billion, while other private studies have been unable to find many drugs where the total development price was over $1 billion. And most failures happen early, when costs are lower. 40% fail in phase I, typical sticker cost: $25 million. For the group that’s left, 70% fail in phase II, typical cost: $60 million. So the more likely tale is simply that the US is a profit center for these manufacturers, not a necessary sector to cover their R&D costs. Poor pharma may just have be solidly profitable rather than spectacularly profitable.

Arguments Against:

Bottom Line:

The pharmaceutical business relies on a heavy amount of research and development spending to develop drugs with the knowledge that around 90% of them will fail (and thus bring in no revenue) so they must fund their entire business on the other 10% including earning a profit—because this is American and profit is not a four letter word
There may be other factors at play in prescription drug costs in this country, insurance companies and if they are properly passing on rebates to consumers
We need pharmaceutical companies to continue to fund all of their research efforts and that may be hampered if they see threats to their bottom line
Pharmaceutical companies may simply refuse to sell drugs with price limits on them in Colorado—what then? Colorado can’t move the entire US market on its own
The board created to run this process is unelected, has little to no accountability to the public or the legislature, and has a very vague financing structure that is not spelled out in the bill, nor is the amount of funds that can be spent on administration and salaries

In Further Detail: The pharmaceutical business model is rather unique in that enormous amounts of money are required to fund research and development of a drug without any guarantee it will actually work. Time and time again these companies have to write-up costly failures. In all, when you consider the entire industry, you are looking at something on the order of $100 billion spent each year on research and development. And since 90% of drugs fail, pharmaceuticals must fund their entire operation on the remaining 10%. And yes, earn a profit. Because this is American and profit is not a four letter word. The profit motive is what helps bring talented people into this field in order to push the frontiers of science to bring us cures. Nowhere was this more evident than the miracle that is the multiple COVID-19 vaccines that were produced in record time and have proven to be extraordinarily effective. The reason prices are lower in other countries is not some nefarious scheme but simply that they have price controls in the manner that this bill is suggesting. It also may have something to do with insurance companies, who drug companies claim do not pass along all of the rebates they receive to consumers (note the bill requires some disclosure around these rebates). The idea that these publicly traded companies are simply going to swallow enormous reductions in their profits without doing anything to try to cut expenses is simply not believable. So closing off one of the last remaining free markets for these companies may very well result in some decisions on drug research we don’t like. In particular this has the potential to harm research into drugs that will likely not be very profitable (even under our current market condition). It may cause these companies to layoff employees and reduce salaries. And the really important thing it may cause is something bill does pay a passing mention to. Colorado acting alone simply cannot influence the prescription drug market in the United States. Faced with having to dramatically lower its pricing for just Colorado, a drug manufacturer may just decide it doesn’t want to sell into the state. The bill brings up just this very thing with a requirement that any manufacturer notify the state it will pull out with a paltry fine for non-compliance that no manufacturer is going to take seriously as well as a potentially completely unworkable plan for individuals to appeal to gain access to their drugs at the old prices. Perhaps the thought is that no drug company would dare refuse to sell its medication, but since the bill has a negative viewpoint of drug companies to being with, that may or may not be the case. What happens if drug manufacturers decide to play hardball is not clear. The final thing worth discussing is the structure of this plan. An unelected board of just five members is given the power to set prices on products in the state. Sure you can appeal (to the same board!) or you can try to go to court. But the breadth of unchecked power given to this board is vast. And it all flows from the governor, the only person with the power to remove someone from the board. The legislature, the voice of the people, is mostly left behind. The legislature is not required to approve any decisions on maximum prices. There is no mechanism for disapproval either if you want the board to be able to move faster when the legislature is out of session. The legislature has little oversight over the board. Conflicts of interest are to be disclosed but there is no investigation done of these five board members to ensure they are being honest and thorough with their disclosures. And we have no idea how this board is to be funded. The bill says it is explicitly not through gifts, grants, and donations, but if not that, then what? Compensation for board members is also absent. There is no limit placed on administrative and salary costs that the board may use for whatever funds it does receive. Too much power concentrated in too few hands with too little oversight and regulation.

SB21-182 School Discipline (Buckner (D)) [Herod (D)]

KILLED BY BILL SPONSORS

Appropriation: None
Fiscal Impact: About $750,000 a year saved

Goal:

Prohibit the handcuffing of elementary school students in schools. Prohibits police from arresting or issuing a summons, ticket, or notice for appearance in court or at a police station for almost all misdemeanor and petty offenses that are not violent or large in scale (see Description). All such conduct must instead be reported to the principal
Prohibit schools from referring a student to law enforcement for conduct at school or on school busses or at school sanctioned events unless there are no other available alternatives for addressing serious bodily injury inflicted on another person or an imminent threat of bodily injury or if schools are obligated by law
Require any school that contracts school resource officers (police in schools essentially) to adopt a policy that requires candidates to demonstrate a record of experience developing positive relationships with youth, have no disciplinary actions or sustained complaints in their service record, and volunteer for the position. All resource officers must be constantly evaluated based on their conduct, with students, parents, and staff encouraged to provide feedback. All evaluations must be shared with the state and state police board and provided to the public upon request
Bars schools from declaring a student habitually disruptive (which bears on suspension and expulsion criteria) unless the school can demonstrate it has implemented a behavioral management plan for the student
Requires all schools to track disciplinary actions taken by race, ethnicity, gender, disability, socioeconomic status, and instructional program service type. This must be reported to the state. Each school must also develop and annually review a plan to address disproportionate discipline practices based on those same categories and must hold public meetings before and after creating the plan

Description:

Bill also adds chronic absenteeism (absence for any reason for more than 10% of school days) and risk of dropping out due to disciplinary actions to expulsion and suspension across several at-risk definitions in programs designed to help students who are in danger of being expelled. This includes adding attendance supports and behavior supports to actions schools can take to try to intervene and altering the state’s at-risk grant program to allow partnerships with local government agencies to provide help to school employees to support students identified as at-risk of dropping out due to chronic absenteeism or disciplinary actions. This can include: attendance, discipline, and grading policies and practice review; training in behavioral interventions and classroom management; and equity, diversity, and inclusion training, including anti-bias training.

Removes ban on failure of a district to identify an at-risk student as a defense in an expulsion proceedings.

Exact list of crimes officers cannot arrest students for: interference with staff, faculty or students in carrying out their duties at the school; disorderly conduct (as defined by criminal statute); theft when the value of the item(s) stolen is less than $300 (again as defined by criminal statue); trespass or interference at a public building or second degree trespass that involves remaining in someone else’s car (again, statute); criminal mischief when the damage is less than $1,000; gambling; loitering; simple harassment; possessing or consuming ethyl alcohol; giving a minor alcohol or attempting to acquire alcohol as a minor; underage smoking; misdemeanor or petty marijuana offense; possession of drug paraphernalia; misdemeanor menacing; non-violent obstruction of a first responder; and any other criminal violation that does not involve serious bodily injury or threat of serious bodily injury and is a misdemeanor or petty offense.

As part of the policy and plan to address disproportionate discipline, schools are encouraged to provide training on best practices and skills to address disproportionate discipline and create new, inclusionary approaches to discipline.

Bill adds equitable enforcement to the requirements for school conduct and discipline codes and tweaks the language of some of the requirements to focus more on age-appropriate and developmentally appropriate punishment that support student learning, positive school climates, restorative justice, trauma-informed approaches, emotional and social supports, mental and behavioral health services, and other wraparound services that use suspension and expulsion as last-measure resorts to protect safety of school community.

The resource officer’s employing law enforcement agency must be a part of the evaluation process. Specifically evaluations must include the frequency of tickets and arrests made by the resource officer and the actions the officer takes to apply preventative, restorative, and trauma-informed approaches to disciplinary issues. Schools must also enter into a memorandum of understanding with the law enforcement agency which must address: strategies, procedures, and practices that minimize student exposure to the criminal and juvenile justice system and prioritize enhancing student learning, safety, and well-being; procedures and policies to establish a sustainable and successful balance between education and protecting students, teachers, and the school; and limitations on student referrals to law enforcement as required by this bill.

Additional Information:

Every school district must have an employee that is a liaison to the state for discipline and training resources and reporting discipline statistics.

For the creation of the plan to address disproportionate disciplinary actions, schools must provide written notification to parents of the plan, issues identified by it, the timeline for adoption, and dates/times of public hearings. 30 days notice is required before the hearing on adoption of the plan.

State board of education must review all data provided on suspensions and expulsions and if available, the reason for the discipline. Data the state receives on discipline under the provisions of the bill must be reported to the federal biennial Civil Rights Data Collection survey. Data must comply with federal Family Educational Rights and Privacy law.

Removes ability for schools to provide partial credit for make-up work missed during a suspension. Adds course remediation, credit recovery. Supplemental education services, work-based learning opportunities, and concurrent enrollment to the definition of “educational services” as what schools can provide students.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Police and schools don’t mix very well at the moment, with an almost endless stream of incidents nationwide (and in Colorado) of officers treating students like budding criminals. Handcuffing for minor infractions, arrests for youthful indiscretions that harmed no one, and no tolerance whatsoever for the propensity for kids to challenge authority
Treating these indiscretions and mistakes like criminal behavior pushes kids into the criminal justice system, the school-to-prison pipeline, that makes having a bright future as a contributing member of our society with good employment and a secure life difficult
The burden of that pipeline falls disproportionately on students of color
So we need to force police to stop treating kids like criminals, get a better handle on school resource officers, and confront head-on the disparities in punishment we see in our schools. We can keep our kids safe with different forms of discipline

In Further Detail: Police and schools don’t mix well right now. Police are authority figures, used to absolute deference and people immediately following their orders. Schools are not that kind of place and the best schools work to develop positive cultures and punishment structures. Not every fight needs to end in an arrest, not every student talking back needs to be handcuffed, and no student needs to be threatened with a firearm. There are numerous horror stories of students being handcuffed, tackled, arrested, and threatened with a firearm, for simply violating school rules. Just this month an eleven year-old was handcuffed and left in a squad car for two hours. His crime? Scratching a classmate with a pencil. Just a taste: criminal charges for disrupting a school for fake burping, disorderly conduct for cursing, assault and battery with a weapon for throwing a baby carrot, drug possession for carrying a maple leaf, battery on police officer for a five year-old(!) for an ADHD-related tantrum, terroristic threats against an 8 year-old disabled student who threatened their teacher, pepper spray used in a school that contaminated the cafeteria food, pepper spray used on a 15 year-old that had locked herself in the bathroom, a 16 year-old tased for punching a wall, an elementary student whose wrist was broken when an officer tried to arrest him for participating in an argument, a boy beaten with a nightstick or using profanity, drawing a gun and pointing it at a student 24 times in three years in a district in Texas, and in Florida, threatening to shoot a high schooler who was not supposed to be in the school parking lot and tried to leave. And that is a very small taste. Many states have found a spike in juvenile arrests during the school year due to law enforcement in schools. We have to give kids the chance to make kid mistakes without pushing them into the criminal justice system, where just being involved in one charge dramatically drops the prospects for future success. We arrested or cited over 4,000 students across the state for non-violent misdemeanors in the 2017-18 school year. Finally, there is a severe racial angle to all of this. Black students are already twice as likely as white students to be referred to law enforcement. A study of New York City middle schools found that black boys from neighborhoods with increased school police presence saw their academic performance drop. In the 2018-19 school year, Black children were over three times more likely to be suspended than white students and Hispanics were nearly twice as likely. Numerous other research demonstrates harsher punishment for children of color than for white children for the same offense. This is literally the school-to-prison pipeline on steroids. So what do we do? First, stop policing the schools the same way we police the streets. Only as a measure of last resort should students be involved in the criminal justice system. This also involves greater control over school resource officers (literally police embedded in schools). Second, pay closer attention to suspension and expulsion data and attack the disproportionate problems we find there head-on, with community involvement. Third, pay more attention to chronic absenteeism as a warning sign that needs intervention and put more effort into so-called habitually disruptive students before we kick them out of school and push them down a dark path that few recover from. We can still keep our schools safe and our kids safe without treating our kids like budding criminals in need of punishment to teach them a lesson.

Arguments Against:

Bottom Line:

Police in schools done wrong is bad but we cannot strip our officers of the tools they have to do their job. Students will know officers have little recourse and will treat them accordingly. This is also true of disruption in schools, which affects everyone who is there trying to learn and trying to teach
School administrators also should not have their hands tied for referring kids to the police, for many of the same reasons
We should not downplay that some schools in this state are dangerous places, even if we are not considering school shootings
School resource officer evaluation is vague, does not include any quantitative data on the positive elements the officer is supposed to bring around school safety, and is open to abuse from disgruntled students and parents

In Further Detail: There is no doubt that police in schools done wrong is bad. But we cannot strip officers of all of the tools they have to do their primary job: keep everyone safe. If students know that the ability for officers to take any action against them is severely limited, they are less likely to listen to officers trying to keep the peace. This also ties the hands of school administrators who again are severely limited in what they can report to law enforcement. We shouldn’t sugar coat that some schools, especially some high schools, are dangerous places even if we are not thinking about school shootings. We also should not downplay the disruption that can occur in schools from what would be considered criminal activity (even if it is minor). That disruption impacts everyone in a classroom including all of the other students trying to get their education. When it comes to safety and disruption in our schools, police should have more involvement than the bill would allow. The bill also puts a target on school resource officers. Parents and kids who are unhappy with appropriately administered discipline have easy access to complain about the officer to the vaguely setup evaluation process which does not contain much criteria other than number of tickets or arrests made (clearly meant to be negative) and qualitative information about the officer. What about how safe the school is? How many injuries or reports of bullying or threats or suspensions or expulsions at the school? Isn’t that all relevant to how well the resource officer is doing their job? Of course all of that is potential positive data.

SB21-199 Remove Barriers To Certain Public Opportunities (Jaquez Lewis (D), Winter (D)) [Esgar (D), Gonzales-Gutierrez (D)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: Increased benefit availability projected to be up to $23 million a year. Negligible other costs to implement bill.

Goal:

Allow any undocumented person in the state to receive public benefits at the state and local level and be eligible for professional licenses and registrations from the government without needing to prove lawful residence in the country, including to be a notary. Also lift prohibition on state contracting with businesses that knowingly employ or contract with undocumented people.

Description:

Removes the requirement that someone prove they are a legal resident of the United States to be eligible for public benefits, at either the state or local level. Removes the prohibition on the state entering into a contract with a contractor who knowingly employs or contracts with people who are undocumented.

The bill would change the identification laws for these benefits by removing social security card and substituting valid state driver’s license or identification card or any valid documents that are required to obtain a state driver’s license or ID card.

For notaries, change current process and instead accept valid state driver’s license, ID card, US military card or dependent ID card, US coast guard merchant mariner card, or a Native American tribal document. Then the individual must sign an affidavit stating they are in the country legally (so those who are not still cannot become notaries, this conflicts with SB077 which currently removes this requirement entirely) Those same identifications also allow for proof of identify for reciprocal licensing for Colorado to other states.

The bill also has some other overlapping provisions with SB077, as this bill also removes the requirement for individuals to prove lawful residence in order to get a license or certification from the state.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We are talking about a population of 162,000 people and 140,000 US citizens who are children with at least one undocumented parent (which disqualifies a lot of public assistance). They are some of the most vulnerable members of our society and are overrepresented in industries hit hardest by COVID
They are also valuable members of our society, paying $150 million in state and local taxes in 2018 and comprising more than 1/3 of the workforce in some industries
The laws being overturned here are actually pretty new: they were passed in 2006, but they obviously still don’t have any affect on undocumented people coming to the state so all they do is increase cruelty—instead of getting housing benefits people are homeless, instead of getting food assistance people and children starve, instead of getting health benefits people and children go without care
Removing lawful presence requirements for licensure are not novel, multiple other states already operate like this including “red” states like Nebraska and Indiana, because it is frankly irrelevant to whether or not someone can do the job and even worse, it pushes people to work without a license which lowers public safety
We have massive educator shortfalls in the state, including in early childhood care, so clearly we aren’t meeting our state’s needs in at least one profession
It is not the job of the state or local governments to be the immigration police

In Further Detail: There are an estimated 162,000 undocumented people in the state, as well as an estimated 140,000 children who are US citizens in this state with at least one parent who is undocumented. These people are also some of the most vulnerable members of our society and are overrepresented in industries hit hardest by COVID. They are valuable members of our society, people who were not citizens paid over $150 million in state and local taxes in Colorado in 2018 (this also counts people here on legal visas). In some industries more than 1/3 of the workforce is comprised of undocumented people. Believe or not these laws are relatively new, they date back to 2006. Public benefit plans exist to help people who need it in our society, including children. These people are here, already, denying them the benefits won’t make them magically leave (have they since 2006?), it just makes it harder for them to contribute to our society and simply shuffles the impact around. Instead of getting public housing benefits people live on the streets. Instead of getting food assistance benefits people and children starve. Instead of getting public health benefits people and children leave conditions untreated until they require expensive emergency care. It is also not a novel, blue state idea to remove lawful residence requirements from licensing. Multiple other states have similar provisions, including “red” states like Nebraska and Indiana. We have massive educator and child care shortages all over the state, where we are so desperate we keep coming with various stipend, loan forgiveness, and other such incentives. It is clear that the current population of the state of Colorado is not filling these roles. We absolutely should not turn away anyone eligible and willing to work with our kids away. This should be true of other professions as well. Someone who is willing to work, pay taxes, and contribute positively to the economy of our state should not be prevented from doing so. All of us benefit from quality workers being able to achieve economic success. It also lifts the ceiling on progress for students who do not have documentation. It is not the job of our regulatory agencies to serve as immigration police: they are there to ensure public safety. Immigration status has nothing to do with if someone can do the job. Furthermore, it will actually help keep the public safer, by bringing undocumented workers into the state licensure system rather than having them operate unlicensed.

Arguments Against:

Bottom Line:

State taxpayer dollars should go to people who are not breaking the law, as anyone who is undocumented is actively doing
We do many things in the name of public safety for undocumented immigrants but making life more comfortable for them economically should not be one of them. Yes, there are long-term harms associated with things like lacking housing, but that’s true of a lot things, like simply being poor, and given limited resources we have to prioritize
It is also too far to try to make it so there is no difference between those here illegally and those here legally for the high-quality jobs that typically come with licensure
It is a federal crime to employ an undocumented person, so we aren’t likely to see school districts hiring these folks or some of the other professions where we have shortages

In Further Detail: When it comes to distributing state taxpayer dollars, that money should not go to people who are not obeying the law. Because anyone who is here illegally is breaking federal law to do so. They are jumping ahead of others waiting patiently to be Americans the right way, the legal way. It extremely important to note that someone who is not a US citizen but is in Colorado legally is obeying the law and is already eligible for housing assistance. There are many things we do for undocumented immigrants in the name of public safety, such as issuing a substitute for a driver’s license, but making life more comfortable economically for them should not be one. Yes, there are long-term harms associated with lacking housing but there are long-term harms associated with a lot of things, like simply being poor, and with as many problems as we have with affordable housing in the state we cannot afford to simply give out housing assistance to everyone. It is also far different to try to make it so there is no difference between those here illegally and those here legally for the high-quality jobs that come with licensure or registration requirements. Furthermore, it is a federal crime to employ an undocumented immigrant. All employers are supposed to fill out the I9 form proving their employees are here legally. So despite the bill’s attempt to claim the state has the power to do this, it would in fact be committing criminal behavior for any school district to hire someone who cannot prove they are in this country legally. Finally, the more benefits we provide to undocumented people in Colorado the more attractive our state becomes for new undocumented people.

Bottom Line:

We got some conflict here with SB077 and some duplication with HB1054 (which allows for just public housing benefits for undocumented people). Either those bills need to die and this become the vehicle for these changes or this bill has to die and those bills need to be the vehicles

SB21-200 Reduce Greenhouse Gases Increase Environmental Justice (Winter (D), Moreno (D)) [Jackson (D)]

KILLED ON SENATE CALENDAR

AMENDED: Minor

Appropriation: $4,401,025
Fiscal Impact: Eventually positive, $4.2 million in expenses this year but then $1 million in revenue each year afterward

Goal:

Put the state’s roadmap for reduction of greenhouse gas emission by sector into law so as to meet the emissions reduction levels required by state law. This means caps on emissions by sector, set at levels for 2025 and 2030. This also means requiring all utilities to plan to meet 80% reduction targets by 2030 (some already have this requirement) and 100% by 2040. The bill also sets a price per ton of greenhouse gasses released that are not already covered by the state and uses the money raised to pay for a new ombudsperson and advisory council dedicated to serving the interests of people in communities disproportionately impacted by environmental pollution. And the bill requires the air quality commission to use the social impact of emissions in its cost-benefit analyses based on a value given per ton of emissions.

Description:

Current state law requires overall emissions levels of 26% of 2005 levels by 2025, 50% by 2030, and 90% by 2050. This bill requires the state air quality control commission to set rules by March 2022 that include specific greenhouse gas limitations that reach those required percentages overall with sector specific limits in 2025 and 2030, including power generation (which includes power imported from out of state) which has higher targets to reach, buildings and industrial processes, transportation and mobile sources, oil and gas exploration and production and transmission and storage, and other remaining sources (precise amounts are in Additional Detail). Oil and gas is basically at 2005 levels right now, power generation is on-track to hit 80% reduction by 2030 having already reduced 23% of 2005 levels as of last year. Transportation is slightly higher than 2005 levels right now and buildings and industrial processes are also basically right at 2005 levels. Other major sectors include agriculture (basically at 2005 levels) and mining (which has dropped about 12%).

The bill requires each wholesale electricity generation and transmission cooperative (which is Tri-State, Xcel and Black Hills, investor-owned utilities, already have this requirement under a 2019 law) to submit a plan to reduce their emissions by 80% of 2005 levels. If they don’t submit a plan that is approved by the end of 2022, that requirement jumps to 90%. Plans must deal with actual emissions going into the atmosphere and cannot rely on reductions that have not yet occurred or occur out-of-state. A utility that fails to meet its targets is subject to additional and more strict emissions limits than the rules require. By the end of 2025 all utilities regulated by public utilities commission must have a plan to reduce emissions by 90% beginning in 2035 and all the way to 100% by 2040.

The commission may modify individual sector targets if it deems that doing so will increase the cost-effectiveness of the overall regulatory structure and result in equivalent or lower levels of emissions. In other words, the modification can only occur if the emissions reduction is at least the same in the end. The commission must lower the allowed amounts (so increase the percentage reduction target) if the public utilities commission approves plans that in aggregate will result in lower emissions than allowed by the rules. In other words, if conditions change so that we will surpass the emissions reduction goals, the targets must be moved to reflect this.

The commission is to evaluate whether a multi-sector approach would work better and if it decides it would, it can adopt a multi-sector target instead of the individual targets laid out by the bill. But the multi-sector approach must reach the same end goals of 26% by 2025 and 50% by 2030.

The commission is to consider the social value of emissions in any rule-making proceeding for cost-benefit purposes, utilizing a value that is no less than the federal rates. Must include carbon, methane, and nitrous oxide costs. The bill also requires the commission to establish a fee per ton of greenhouse gas emitted by businesses. This is similar to an existing requirement for these businesses to pay a fee per ton of regulated air pollutants, like nitrogen oxide. The fee is to be a sufficient amount to cover the costs of the state’s programs that pertain to greenhouse gasses (the existing fees already go toward this), and the bill adds two new programs for the fee to cover (at current levels of $36 per ton for other pollutants, it is estimated the fee will bring in $15 million a year). Bill keeps current law that no individual pollutor pay for more than 4,000 tons of each regulated pollutant, so new fee will be capped at that amount). One is an environmental justice ombudsperson, appointed by the executive director of the department of public health and environment. They are to have experience or training in environmental justice and be either a resident or have worked directly with a disproportionately impacted community. Duties include being an advocate for these communities and serving as their liaison to the government, increasing flow of information to these communities and conducting outreach in them which includes in-person meetings, enable meaningful participation in the state’s decision-making process, serve in an advisory capacity to other state agencies and to work collaboratively with the environmental justice advisory board (see below).

The environmental justice advisory board is the second new program the bill establishes. This consists of nine members who serve without compensation but can be reimbursed for expenses. The board is to work with the ombudsperson, including in outreach efforts; study, research, and advise the state on matters the board deems are important to enable the state to interact with disproportionately impacted communities; and address any other matters relating to adverse environmental impacts on disproportionately impacted communities referred to it by the state. Board set for repeal with sunset review in 2027.

Air quality commission is also required to conduct outreach and engage with disproportionately impacted communities, with the help of the ombudsperson and advisory board, when they may be affected by a proposed rule. This requires the commission to first determine if that is the case. If the commission decides it isn’t, anyone can ask for a reconsideration within 14 days of the decision. For each hearing on a proposed rule, commission must provide at least two public opportunities for comment, one on a weekday between 9 and 5 and another on a weekday between 5 and 10. Remote access must be available and Spanish language materials and real-time translation must be available. Must also be reasonable accommodations for requests for languages other than Spanish.

Additional Information:

Exact limits for greenhouse gas emissions are, for power generation: 21 million metric tons of carbon dioxide by 2025 (just over 50%) and 8 million (80%) by 2030. For buildings and industrial processes: 26 million (7%) by 2025 and 20 million (29%) by 2030. For transportation and mobile sources, 23 million (23%) by 2025 and 18 million (42%) by 2030. For oil and gas production, 13 million (26%) by 2025 and 8 million (50%) by 2030. All other sources is basically what is required to meet the climate goals.

State must prevent double-counting of emissions among clean energy plans submitted by utilities.

For the new fee on greenhouse gas emissions per ton, the commission cannot exempt anyone from the requirement to pay annual fees (they can do this for existing fees, which is $36 per ton at the moment).

Executive director must consult with advisory board, legislature, representatives of disproportionately impacted communities, and other relevant stakeholders prior to picking the ombudsperson.

Five members are to be appointed by the executive director of the department of public health and environment, with four of them required to be from disproportionately impacted communities and one from an organization that represents statewide interests to advance environmental justice.

The other four members are to be appointed by the majority and minority leader of each chamber with no specific requirements (speaker and minority leader of the House and president and minority leader of the Senate).

Board must meet at least once a quarter.

Auto-Repeal: September 2027 for advisory board

Arguments For:

Bottom Line:

On the whole the hard targets in this bill merely put into state law the already existing roadmap to meet our already existing climate goals, with industry specific modifications such as recognizing that power generation is basically already on track to meet 80% of reduction by 2030, while transportation and buildings will be harder
We need to do all of this to avert climate catastrophe—current conditions in the state with massive wildfires and mega droughts are already bad enough, we cannot afford for it to get worse
Given the recent news about the state illegally granting noxious gas permits to industry, we can’t afford the informal “working with industry” stance we currently have toward these targets
For the disproportionate community section of the bill, the #1 indicator for placement of toxic facilities in this country is race. 78% of African-Americans live within 30 miles of a coal-powered plant (56% of non-Hispanic whites). Latino children are 40% more likely to die from asthma than non-Latino whites. These communities lack the power to fight back against polluters in an effective way and lack the power to get proper redress for wrongs done to their environment.
On the cost of the pollutants, these are not numbers pulled out of the air, they are scientifically derived and if anything, undercount the social impact given how hard it is to decide how much blame exactly resides for things like increased natural disasters

In Further Detail: In a large sense, this is merely putting into law the state’s existing roadmap for reaching our climate goals. Power generation is being given targets it is basically already on track to meet, which are higher than the overall state targets because we’ve got trouble in other sectors. Transportation is an obvious one: electrification is the only way but it is going to be harder to reach 50% by 2030 so the goal is slightly below that. Ditto for buildings, which may actually be the hardest sector to achieve reductions in and so have the lowest goals. Oil and gas reductions should be helped by natural reductions in their usage due to increased clean energy use, so they should be able to meet the target. And why are we doing all of this? To avert climate catastrophe. We keep piling up record highs and collecting top 5 record warmest years. We have seen increased flooding in coastal areas and more dangerous storms (how many 100 year weather events can we have in the space of a few years?) More and more extreme fires hit our state seemingly every year. Droughts last longer and are more intense. Our current climate situation is bad here in Colorado, we cannot afford for it to get much worse. So drastic and immediate action is required. The less confrontational way mentioned in Arguments Against seems to be a problem as whistleblowers just in this past month revealed that the state was illegally approving noxious gas permits for industry without performing required environmental modeling or monitoring and even worse, falsifying data to get permits through. So cooperation between the state and industry seems to be a failure we cannot afford. For the disproportionate impact programs the bill funds, waste management, including toxic waste sites, and high pollution sites tend be located in minority dominated and poor areas (since the better connected and wealthy don’t want them in theirs). The number one indicator for placement of toxic facilities in this country is race and 78% of African-Americans live within 30 miles of a coal-powered plant (56% of non-Hispanic whites). Latino children are 40% more likely to die from asthma than non-Latino whites. The high profile national examples like the water in Flint actually pale in comparison to daily damage being done in many communities, including in Colorado, including something as simple as where the highways run (through poor and minority based communities) and therefore higher air pollution from vehicles. These communities lack the power to fight back against polluters in an effective way and lack the power to get proper redress for wrongs done to their environment. On the cost of pollutants, this is not a figure pulled out of the air. It is based on years of scientific and economic research, input from scientists and agencies around the world, and grounded in actual data. Is the absolute perfectly correct number? Of course not, but it is a very good estimate of the societal cost we bear for every ton of pollution spewed into our atmosphere. If anything, it may be conservative given the difficulty of assigning the exact blame for increased natural disasters like wildfires to tons of pollution.

Arguments Against:

Bottom Line:

Hard caps are not the right approach and are opposed by Governor Polis. The achievements in our power sector point the way: no hard cap and yet we have an industry poised to greatly overperform our reduction goal. Through legal requirements at times yes, but never a hard cap on emissions
Other sectors may prove extremely hard to enforce with limited recourse beyond draconian measures like banning sale of gasoline-powered automobiles
Illegal activity by state employees isn’t fixed by new laws it is fixed by getting rid of the employees
Social value costs of pollutants is not an exact science and the Trump administration was using much lower costs

In Further Detail: Hard caps are not the way to go here and Governor Polis does not support them. Note what we’ve achieved in the power sector to this point: they are on track to hit 80% reductions by 2030, way ahead of our legal overall emissions reductions requirements. Achieved in large part through working with the industry, although some of it has been spurred on by new laws. But at no point did we institute a hard cap on emissions. We can achieve similar results in other industries and in some places frankly we have no choice. Look at transportation. How are we supposed to enforce hard caps on emissions? Ban sales of gasoline-powered automobiles? Because, as Arguments For notes, we are getting there via widespread adoption of electric vehicles and forcing that on the public is likely to backfire. Private buildings are another sore spot with similar problems. So even if the caps in these two sectors are more lenient, they are still potentially setting us up for failure. And then what? As for the alleged illegal actions of state regulators with noxious gas permits, the key word here is illegal. The problem is with that state agency and its personnel, so passing new laws isn’t going to solve it. It just would provide more laws for people to break. The social value cost placed on these pollutants is also not as precise as we might want to credit. Yes it is the work of years with the input of many, but it is in the end an estimate. The Trump administration junked the working group that was to provide an updated cost and was using much lower interim costs.

Bottom Line:

What we should not be doing is putting our thumbs on the scales against fossil fuels. Doing so will have an economic impact on this state, where oil and gas are a critical industry. You cannot simply declare that we’ll move jobs from oil and gas to renewable energy. It doesn’t and won’t work like that

Bottom Line:

This bill seems to conflict in part with two other bills in the session, HB21-1266 which addresses all of the disproportionate impacts on communities issues this bill does, although in a different way, and HB21-1238 which addresses calculation of social costs of carbon and methane (albeit for a different commission, the public utilities commission)

SB21-205 2021-22 Long Appropriations Bill (Moreno (D)) [McCluskie (D)]

From the Joint Budget Committee

Note this includes budget package bill SB21-206-228, although some of those bills have their own Engage writeups as well.

Appropriation: n/a this is the budget
Fiscal Impact: n/a this is the budget

Goal:

Enact the 2021-22 fiscal year budget at $34.1 billion, $3.8 billion higher than last year’s budget, by using leftover funds from last year’s budget thanks to better than expected tax returns. This budget largely restores 2019-20 spending levels while setting aside $800 million for other stimulus measures (some already signed by governor, others already introduced and others yet to come in this session in other bills), $1.75 billion for state reserves, an extra $100 million for higher education, and $580 million toward K-12 education for reserves and the “negative factor”. The legislature has promised to entirely erase the negative factor with federal stimulus money. None of the $3.9 billion federal money coming to Colorado is accounted for in the bill: will be spent in future legislation.

Description:

Enacts the 2021-22 fiscal year budget at $34.1 billion, which is $3.8 billion higher than last year’s budget. These increases are achieved in part by better than expected tax revenues and also by rolling over money from last year’s budget (in essence we cut much more than we had to last year and so have excess money). All of that rolled over money is of course a one-time measure, not indicative of new annual levels. The budget does not include any of the $3.9 billion the state will receive thanks to the federal American Rescue Plan passed earlier this year, but as you’ll see, some of that money is already being accounted for while the state determines how to spend the rest.

$800 million in the budget is set aside for stimulus measures, some of which have already been introduced in the legislature (and a few already signed by the governor). You’ll know them in Engage because they will always reference the $800 million to spend in the Arguments Section. This is totally separate from the $3.9 billion in federal money—so essentially the state is going to spend $4.7 billion in one-time funds in bills this year (some of that money won’t be spent until next year as you’ll see).

The budget sets aside $480 million for the state’s “negative factor”, which is the amount the state owes schools under our Constitution but has not paid. That brings the factor down to what is was in 2019-20, prior to the pandemic, around $572 million. But the Joint Budget Committee is promising to spend an additional $1.1 billion from the federal stimulus money over the next two years to wipe out the negative factor entirely for this year and next (brings the total available down to $2.8 billion). This will mark the first time since the Great Recession in 2009 that the state has paid schools the entire amount it is required to. The bill also restores a $100 million cut made to the school construction program, BEST, and dumps $100 million in the state education fund which should balloon the fund to $560 million. This is a reserve fund. What is done with this money would be up to future budgets but it is possible it could be used to stabilize negative factors after next year or it could be used to help transition the state to an entirely new funding model for K-12 education (the Joint Budget Committee has made noises about using it in this manner).

The budget entirely restores the massive cuts made to higher education in last year’s budget, $494 million worth (most of this was backstopped with federal aid, so institutions did not actually see cuts that massive), and adds $100 million more, with $40 million of that tagged for retention and recruitment of students of color, low-income students, and first-generation students. The budget allows institutions to raise their tuition rates by 3%, except for the University of Northern Colorado which can raise its rates by 7%.

The bill includes a 3% raise for all state employees and restores the $225 million cut made to contributions to the state employee retirement fund, but puts off the distribution to next year. It adds another $155 million which can be used for the fund down the road.

The budget sets aside a massive amount for state reserves, which were slashed last year, 13.5% of this year’s budget or $1.75 billion, and mandates an even higher amount of reserves for next year, 15% (this can and probably will be changed when they actually write the budget for next year. It also puts another $101 million to the emergency state reserve fund, which can only be spent during a declared disaster emergency (like our current one), which increases overall emergency disaster reserves to $446 million.

The bill also puts $198 million into the capital construction fund, $27 million into the IT capital account, and $110 million into the controlled maintenance trust fund, all of which state agencies and institutions of higher education can tap for construction, IT projects, and controlled maintenance projects. These must be approved by the legislature and are included in the budgeting process.

The bill also sets aside $124 million for transportation for a bill that has not yet been introduced to reverse cuts from last year.

Larger individual items include: removing a cap that was put on dental benefits in last year’s budget (and never actually enacted thanks to federal law), $10 million repaid to various cash funds that had money removed in last year’s budget, $20 million to create more slots for the state’s Medicaid 24/7 program for people with intellectual or developmental disabilities (which should reduce the wait list by ¼), $25 million of additional federal funds in Medicaid by aligning better with federal law, temporary increase of $84.9 million in federal Medicaid funding that will expire once the disaster emergency is over, $21 million for a future bill to help keep public health departments funded at higher levels for the pandemic, a large decrease in employees in the department of corrections due to fewer projected inmates (thanks to various legislative changes in other bills), large decreases in the local affairs and office of governor budgets because those two funneled most of the federal disaster relief money last year (so returning to normal levels), the standard 2.5% provider rate increase for community health care organizations, $6.9 million for a future bill to increase capacity in child welfare system and $1.2 million for a future bill to increase capacity to serve children with intellectual or developmental disabilities, and $5 million to grants to repair watersheds damaged by the 2020 wildfires

The following programs all had funding restored from last year’s cuts: History Colorado, Quality Teacher Recruitment Program, Educator Loan Forgiveness Program, Professionals Matching Grant Program, K-5 Social and Emotional Health Grant Program, Ninth Grade Success Program, School Leadership Pilot Program, Automatic Enrollment in Advanced Courses Grant Program.

Each department’s budget is included in Additional Information.

Additional Information:

The budget breakdown by department is (remember none of this includes the $3.9 billion in federal stimulus money):

Agriculture: $58.9 million of which $13.1 million is general fund money which is a 16% increase. Increase of 1 full-time employee
Corrections: $960.5 million of which $867.5 million is general fund money which is a 3% increase. Decrease of 157 full-time employees
Education: $6.4 billion of which $4.3 billion is general fund money which is a 7% increase. No change in full-time employees
Governor: $365 million of which $57.6 million is general fund money which is a 36% decrease. Decrease of 1 full-time employee
Health Care Policy and Financing: $13.4 billion of which $3.5 billion is general fund money which is a 23% increase. Increase of 25 full-time employees
Higher Education: $5.1 billion of which $1.2 billion is general fund money which is a 100% increase. Decrease of -189 full-time employees
Human Services: $2.4 billion of which $1.1 billion is general fund money which is a 7% increase. Increase of 5 full-time employees
Judicial: $849.8 million of which $623 million is general fund money which is a 8% increase. Increase of 51 full-time employees
Labor and Employment: $290.6 million of which $21.1 million is general fund money which is a 14% increase. Increase of 8 full-time employees
Law: $98.1 million of which $15.3 million is general fund money which is a 7% increase. Increase of 16 full-time employees
Legislative: $59.9 million of which $58.4 million is general fund money which is a 9% increase. Increase of 6 full-time employees
Local Affairs: $312 million of which $43.5 million is general fund money which is a 45% decrease. No change in full-time employees
Military and Veterans Affairs: $138.5 million of which $11.7 million is general fund money which is a 13% increase. Decrease of 19 full-time employees
Natural Resources: $323.2 million of which $36 million is general fund money which is a 10% increase. Increase of 5 full-time employees
Personnel: $216.1 million of which $18.7 million is general fund money which is a 30% increase. Increase of 3 full-time employees
Public Health and Environment: $659.4 million of which $88.7 million is general fund money which is a 33% increase. Increase of 141 full-time employees
Public Safety: $529 million of which $167.7 million is general fund money which is a 10% increase. Increase of 7 full-time employees
Regulatory Agencies: $120.9 million of which $2.2 million is general fund money which is a 14% increase. Decrease of 1 full-time employee
Revenue: $424.2 million of which $137 million is general fund money which is a 15% increase. Increase of 3 full-time employees
State: $32.7 million of which $271,360 is general fund money. Decrease of -1 full-time employee
Transportation: $1.9 billion of which $0 is general fund money. No change in full-time employees
Treasury: $841.2 million of which $344 million is general fund money which is a 91% increase (this is where retirement funds go, hence the large increase). Increase of 4 full-time employees.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Much of this huge windfall is one-time money: it’s leftover from last year’s budget and is not an actual reflection of on-going revenue, which has not recovered to pre-pandemic levels. So we cannot create new structural programs that require on-going spending because the money won’t be there next year
We also have $2.8 billion more to spend from the federal government and the $800 million in state money that isn’t in this bill. So many of those huge priorities? We’re addressing them, just not here. This by the way could include tax refunds
The bill restores pretty much all of the funding cuts made so we are back to 2019-20 levels while simultaneously putting away a lot of money in savings for the next rainy day
The bill completely erases the negative factor for schools, which is a huge accomplishment, and actually boosts our higher education funding beyond 2019-20 levels

In Further Detail: We are extremely fortunate to have a huge windfall of money to spend in this year’s budget, but we have to recognize that a lot of it is one-time spending. That is we cannot create new structural programs that require constant funding streams because a huge chunk of the increases are coming from us slashing too much last year. We have in fact not yet recovered to 2019-20 revenue levels. We also have to consider the massive federal stimulus money coming to the state. So this budget keeps all of that in mind by basically putting us back to 2019-20 spending levels in most areas, supporting the fact that our current revenue doesn’t match that through excess 2020-21 revenue. That of course is priority one. Priority two is stimulus money, some of which is already accounted for and the rest will be coming in other bills. One-time money we can spend to boost various areas of the state: transportation, infrastructure, job training, school infrastructure, broadband access, water projects, clean energy projects, etc. Priority three is saving for a rainy day. Because you never know when one is coming (just think about what we all thought 2020 was going to be like at the end of 2019). So the bill rebuilds our state savings and puts money away for education as well. On education, wiping out the negative factor is a huge deal. It is not all accomplished in this budget bill itself but the promise of using a big chunk of the federal stimulus money to do it should suffice. We of course still owe our schools from past years, but it is a huge achievement to put this much extra money into them this year. Higher education is another area that has been horribly neglected and is therefore getting a boost beyond 2019-20 levels, with a particular focus on underserved communities and students. And giving our state employees a raise is also a great way to boost our economy. When it comes to some of the specific areas mentioned in Arguments Against it is worth remembering three things: we have $2.8 billion of federal stimulus money still to spend, we still have millions of state stimulus money (from the $800 million) that have not yet been allocated, and we cannot create new programs that we will be unable to fund in future years (like higher teacher pay or a steady long-term source of funds for transportation)

Arguments Against:

Bottom Line:

This allocates too much to reserves: we should be spending more on our biggest state priorities like transportation and water, many of which can be done as one-time project investments
We need to spend a ton of money on forest management as well to mitigate risk of huge wildfires
We could spend even more on education in teacher pay (perhaps as bonuses since this is one-off spending) and paying down previous years’ negative factors

In Further Detail: This allocates too much to reserves, which yes, we need to rebuild but not to this extent. That is money we could be spending on our billions of dollars in transportation needs instead of increasing fees as another bill in this session proposes to do. That is money we could be spending on the tens of billions we need for our state water plan. That is money we could be spending on forest management to mitigate wildfires where we need to be doing controlled burns of hundreds of thousands of acres every year instead of the measly 13,336 we did in 2019. That is money we could be spending to boost behavioral health infrastructure and early childhood care infrastructure all over the state. And that is money we could use to pay our teachers more. Perhaps not on an on-going basis but at least one-time bonuses. There is another bill in this session that creates a fund for increasing teacher pay but puts no money into it. And what about paying down some of the negative factor money we owe schools from previous years? On a more technical note, since retirement fund money is invested, it does not matter that the fund may not need it this moment—you invest the money now so it can earn and grow into a larger pot of money with compounding effects.

Bottom Line:

Enormous one-time windfalls like this could also be returned in part to state taxpayers. We are forbidden to return any of the $3.9 billion federal money coming in stimulus to taxpayers, so the place to do it is with our budget. It can be a one-time refund to help boost the state economy targeted at those who need it the most

SB21-238 Create Front Range Passenger Rail District (Garcia (D), Zenzinger (D)) [Esgar (D), Gray (D)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: Negligible savings this year, everything else is down the road

Goal:

To create a transportation district along the I-25 corridor to support a future passenger rail train line. This district would be given the power to ask voters for sales tax increases (maximum of 0.8%) to fund itself and can also issue bonds. Any constructed train line would have to interconnect with existing RTD lines, Amtrak lines, and any future I-70 mountain corridor lines.

Description:

Creates the Front Range Passenger Rail District (FRPRD), which in essence includes the entire I-25 corridor in Colorado. Specifically, all of Larimer and Weld counties that are in metropolitan planning organizations (federally funded transportation organizations) and for the parts that aren’t, must be north of Fort Collins and located wholly or partly within 5 miles of I-25; all of Huerfano, Las Animas, and Pueblo counties within metropolitan planning organizations and for the parts that aren’t, must be located wholly or partly within 5 miles of I-25; all of Adams, Arapahoe, Boulder, Douglas, El Paso, and Jefferson counties within metropolitan planning organizations; and all of Broomfield and Denver counties.

This district is setup similar to RTD in that it is not a state agency and its purpose is to develop and maintain transit systems inside the district. In the case of FRPRD, it is solely concerned with an interconnected passenger rail system that is competitive in terms of time with other surface transportation. This is to consist of one main north-south line from at least Pueblo to Fort Collins but perhaps more, that interconnects with RTD transit, Amtrack’s southwest chief, California Zephyr, and Winter Park trains, and any passenger rail system serving the I-70 mountain corridor. The bill states that the preferred path is one that runs through Boulder then goes back toward I-25.

The district is governed by a board of directors appointed by a mix of the governor, metropolitan planning organizations, and the department of transportation with optional non-voting members from neighboring states and railroad companies (see Additional Information for board breakdown). Board members are not compensated but can receive per diems.

The board has the power to approve rail routes and station locations, but must collaborate with local governments on these. It can buy land and trigger eminent domain actions, establish fares and other user fees, refer ballot issues to levy taxes (maximum of 0.8% sales tax) or issue bonds, enter into public-private partnerships and agreements with all entities, including other governmental entities, hire employees, and enter agreements with anyone for creating retail or commercial enterprises or for creation of residential facilities at or adjacent to rail stations (subject to local zoning). Board will be in charge of selecting train technology and safety standards, which of course must be consistent with federal and state law.

Before asking for any tax increase, the board must publish a proposed service development plan, an operating plan, and a detailed finance plan. It must also certify that it made every effort to secure federal funds first. If the voters approve any taxes, the state auditor is to audit the authority every two years.

The bill also allows for cost-sharing arrangements between RTD and FRPRD for new lines.

FRPRD has the power, with local government approval, to establish station area improvement districts to finance the construction, operation, or maintenance of a station. Maximum of 2 mile radius around the proposed station site. The majority of the property owners within the proposed district must approve as must either the majority of registered voters in the area or 1,000 voters (whichever is less). For all ballot issues district must pay any extra costs counties incur for having the issue on the ballot and the district is forbidden from using its public money to urge or oppose passage of a ballot issue.

The bill ends the Southwest Chief and Front Range Passenger rail commissions and folds any existing rights, obligations, or liabilities of those commissions into the FRPRD, including any money those commissions currently have.

All board meetings must be conducted in public with live broadcasts as practicable and reasonable accommodations for those with disabilities. All meetings must be recorded and made publicly available. The bill provides no mechanism for meeting in private in executive session. Board decisions are made with a majority vote except for referrals for tax measures to the voters and that it can add additional advisory non-voting members to the board, both by a 2/3 vote. Senate can remove a board member by a 2/3 vote.

Additional Information:

FRPRD has power to enter onto land to conduct surveys, borings, soundings, and examinations, including land owned by the Union Pacific Railroad or BNSF Railroad.

Board has power to set terms of any issued bonds. It can also invest its money in similar manner to other quasi-governmental agencies. All district income is tax exempt.

Board members must recuse themselves from matters in which they have a conflict of interest. Board is composed as follows. Six members appointed by governor and confirmed by Senate. one must be a representative of organized labor and one must be a representative of a conservation organization with expertise in transit-oriented land use planning. Must collectively have experience in transportation or public finance, supporting a statewide employee organization, passenger rail development or operations, and environmental conservatism. At least one must be a resident of a city/county where RTD FastTracks was approved but not constructed (this is the line that is supposed to up to Boulder).

Eight 10 members appointed by metropolitan planning organizations and approved by the Senate. Each organization that represents more than 1.5 million residents appoints three four (Denver), each metropolitan planning organization that represents more than 750,000 500,000 but less than 1 million residents appoints two (Colorado Springs and the North Front range district), the North Front Range district, Pueblo, and South Central council appoints one each.

The final voting member is appointed by the executive director of the department of transportation and is not Senate confirmed.

The Union Pacific Railroad, BNSF Railroad, and Amtrak can appoint one non-voting member each if they want. RTD must appoint one non-voting member. Wyoming and New Mexico and each appoint one resident as a non-voting member if they want. Also one advisory non-voting member appointed by board of directors of I-70 mountain corridor coalition.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

The estimate is that a train running from Fort Collins to Pueblo would serve nearly 10,000 people a day, removing them from I-25 and saving 94 tons of greenhouse gas (every day)
Amtrak is envisioning future expansion with a line from Pueblo to Cheyenne and the proposed federal infrastructure bill that is the next priority for the Democratically controlled federal government includes $80 billion to expand rail in the country
Even without federal money, the bill provides provisions to raise funds with voter approval for the massive initial investment required, and then the operation is supposed to operate like RTD with fares and other revenue streams helping finance ongoing operations
Unlike RTD, this is just one train line. Much simpler and should avoid many of the financial pitfalls RTD faces. Ability to share costs could actually help RTD finish expansion to Boulder and Longmont as long promised
Voters have the final say on any tax increases

In Further Detail: We’ve actually already studied this issue, at least in terms of a line that ran from Fort Collins to Pueblo, and the estimate is that such a train would serve nearly 10,000 people a day and nearly 3 million a year. Imagine taking all of those people off of I-25: first, just the sheer congestion and second, that’s 94 tons of greenhouse gas saved each day. This is with projected fares of $22 for a one-way ticket from Colorado Springs to Denver. The next part of this is critically important: Amtrak has released a map of what it envisions the rail network would look like in 2035 and it includes a line from Pueblo to Cheyenne. Given that there is also an existing Amtrak line that goes through La Junta and on to Albuquerque, it makes sense to extend the map for the proposed district in this bill beyond Fort Collins all the way to the state’s northern border and beyond Pueblo to its southern border. It is also very much possible that we could see federal funding for this line: President Biden’s massive infrastructure proposal, which is the next priority for the Democratically controlled federal government and can pass through the Senate by bypassing the filibuster, has $80 billion to expand and improve Amtrak and our freight rail network throughout the country. By no means does this bill count on these federal funds, with voter approval the FRPRD could bring in sales taxes to help make the initial massive investments required ($5 billion is the estimate), but after that the idea is similar to RTD: fares help support the train’s operation and unlike RTD, we are talking about just one train line: no busses, no requirements to provide transport throughout the district. That will make operational costs much simpler and likely avoid many of the pitfalls that have plagued RTD’s finances. The ability to share costs with RTD will also make it much more likely that the long-awaited extensions to Boulder and Longmont will actually finally get built. The most important thing to remember: voters in these counties will still have the final say on this. The bill simply provides the structural ability to make it happen at all.

Arguments Against:

Bottom Line:

Past experience indicates these projects come in way over budget and don’t deliver the promised levels of ridership
Similar trains in other western states don’t move the needle much on congestion relief (and neither does 10,000 people on the proposed line in the bill) because we simply don’t have the density to support such modes of transit. This requires being able to get where you need to go at your destination without a car
RTD, which does have more difficult operating constraints but is a similar basic concept, was in enormous financial difficulty even before the pandemic with declining ridership and multi-million annual budget deficits. We don’t need a second RTD headache to solve
We are better off investing in clean energy and electrification, including of cars

In Further Detail: It seems like we’ve heard this particular song before, when constructing the now massive light rail network in Denver: it is going to cost X amount and be done in Y years. And then someone the cost ends up doubled and the promised ridership doesn’t appear in as large numbers as promised. RTD projected $335 million to complete its West line and said it would carry just over 29,000 passengers a day. Instead it cost $707 million and just under 14,000 riders per day (still better than the $5 billion/10,000 rider promise the Pueblo to Fort Collins line is promising). Utah has a train between Provo and Ogden (81 miles) that cost $2.4 billion. It gets less than 17,600 riders per day. New Mexico has a train between Santa Fe and Albuquerque that cost $385 million and gets less than 3,000 riders per day. In fact, train after train system outside the Northeast tells a similar story: not enough people riding it to justify the massive costs. And think about it: first, if you are going to take the train you have to be able to get from the train station to wherever you are going and then get around without a car. Otherwise no one would take a train, they’d just drive. Second, how many people actually have to commute from even Colorado Springs to Denver? The bottom line is that outside the dense Northeast passenger rail trains don’t make much sense unless we are talking about high speed bullet trains that in essence replace air travel. That of course is not what is under proposal here. And it is also very much worth bringing RTD into this discussion, even though the proposed district would not have a lot of the requirements that make it harder for RTD to breakeven. The simple fact is that even before the pandemic RTD was in serious financial difficulty. It has seen its ridership drop over the five years prior to the pandemic and it was only covering 23% of its costs pre-pandemic and therefore facing annual multi-million budget shortfalls. Mass transit is really hard in sprawled and low density environments and that’s just what Colorado is. We are better off trying to attack climate issues through massive investments in clean energy to power electricity and then electrifying our greenhouse gas emitters like automobiles.

SB21-252 Community Revitalization Grant Program (Fenberg (D), Holbert (R)) [Titone (D), Lontine (D)]

*State stimulus bill, 8% of total stimulus funds spent in this bill*

SIGNED INTO LAW

AMENDED: Minor

Appropriation: $65 million
Fiscal Impact: None beyond appropriation

Goal:

Create a grant program to spend money in local communities on create projects in either existing or proposed mixed-use commercial centers with preferences given to projects that have outside funding, are in places experiencing economic hardship, have sustainable housing, have strong community support, will stimulate community and economic development, will be able to start quickly, and demonstrate a public benefit. $65 million given to the program and all must be spent by end of next year.

Description:

Creates the Community Revitalization Grant Program which provides grants to local governments to support creative projects in either existing or proposed mixed-use commercial centers, including: flexible live-work or vendor spaces for entrepreneurs, artists, people employed in creative industries, and artisan manufacturers; performance spaces; mixed-use retail and workforce housing partnerships (means affordable housing located near places of work); meeting spaces for community events; renovation or refurbishment of vacant or blighted property for creative industries, economic development, or historic preservation purposes; and child care centers. $65 million appropriated to the program.

Preference must be given to projects that: are located in creative districts and historic districts, are located in communities experiencing economic hardship, will stimulate community and economic development in part through creative industries, have demonstrated an ability to begin work within a reasonable amount of time, demonstrate broad support from local governments and surrounding communities and neighborhoods, demonstrate strong evidence of being able to attract additional sources of funding, incorporate sustainable housing elements, and demonstrate a public benefit.

Any grant requests that exceed $100,000 must get at least 50% of the total financing for the project from some other source.

Bill creates a stakeholder group consisting of representatives of the division of local government (which runs the program), department of local affairs, the Colorado housing and finance authority, a community development financial institution, the Colorado educational and cultural facilities authority, History Colorado, and other relevant stakeholders, industry partners, housing advocates, and interested parties. This group is to advise on grant applications.

State can contract part of its administrative duties to a third-party administrative entity and can spend a total of 4% of the money on administrative costs. State has until the end of 2022 to award all the money, any money left at that point reverts to the general fund. State must report to the legislature in November 2022 and November 2023 on how the money was spent. Program is repealed in January 2025.

Creative districts can already be created by local governments. They must be physically contiguous; be distinguished by physical, artistic, or cultural resources that play a vital role in the quality and life of a community; be the site of a concentration of artistic or cultural activity, a major arts or cultural institution or facility, arts and entertainment business, area with arts and cultural activities, or artistic or cultural production; and be engaged in the promotion, preservation, and educational aspects of the arts and culture of the community and contribute to the public through interpretive, educational, or recreational uses. There are 26 such districts in Colorado.

Additional Information: n/a

Auto-Repeal: January 2025

Arguments For:

Bottom Line:

This is a way to create true community centers that mix different types of activities together into one central location that will drive visits, living space, potential retail use, and business/commercial development
It is by no means exclusive to creative industries, mixed retail/housing and child care facilities are specifically mentioned and the language of the bill is broad
Culture is also an essential industry that was extremely hard hit by the pandemic (more than $1.4 billion lost by last October) and is a great way to knit communities together
The bill also provides a great opportunity to turn vacant lots and blight into real community centers
This is a lot of money but to the extent to which we can use it to build vibrant community centers all over the state it will be well spent

In Further Detail: We have an opportunity here with all of this state stimulus money to make real investments in communities all over the state to create true community centers that mix different types of activities together into one central location that will drive visits, living space, potential retail use, and business/commercial development. This grant program is aimed just for this, and although the heart of the program is creative industries, it is by no means exclusive to projects in that area. Mixed-retail/housing is specifically called out, as is child care facilities (desperately needed all over the state) and the terms around prioritization that include stimulating commercial and economic activity are pretty broad, even if part of it is supposed to be cultural. And let’s discuss culture. It’s an essential industry that was really hard hit by the pandemic. The arts industry contributes over $31.6 billion dollars to the state economy and employs over 190,000 people (pre-pandemic). By just last October the industry had lost more than $1.4 billion. Arts and culture are great ways to bring communities together as are what you might call gathering areas. These are places where people congregate and provide a true sense of being in a community. If you don’t have these areas or lose them due to unaffordability for the generally low paying creative sector there is a serious negative impact in the community as a whole. The program can also revitalize areas affected by vacant lots and blight, which can then bring people into the community, along with their money, to help entire communities prosper. So yes, this is a lot of money. And no, we probably aren’t going to spend it on shopping malls. It may be a bit premature to rule out things like parks and recreation centers, as those can be cultural hubs as well. But in the end, the goal is to create vibrant community centers where people can work, live, and play. The extent to which we can do that all over the state will be money well spent.

Arguments Against:

Bottom Line:

Creative industries should not be this large a focus of our state stimulus package, this bill is one of the largest single elements of the entire $800 million stimulus
Community centers can go beyond creative industries and leisure activities would seem to not fit into this grant program so things like rec centers, parks, sports facilities, and game centers seem left out
The stakeholder group that is supposed to advise on the grants is pretty vague, this is too much money to simply throw this into the executive branch and hope for the best

In Further Detail: There is nothing wrong with making creative industries such as the bill describes part of this overall massive grant program aimed at helping revitalize communities. The problem is making it the sole focus. Let’s be clear: this is one of the largest single spends in our entire $800 million stimulus package, so it’s worth asking some tough questions about the prioritization. While the bill’s grant program is certainly vague in spots, the core of it is creative industries. That is to say, if your plan for revitalizing a particular part of your community doesn’t have anything to do with creative industries, you are probably going to lose out in prioritization even if it could have a demonstrable positive local economic impact. Of course creative industries itself is a vague term that is not defined by the bill, but the idea would seem to be artistic and cultural activity, since that is required for creative districts (which also receive prioritization under the bill). So projects aimed at leisure activities such as recreation centers, outdoor playgrounds and sports facilities, or indoor ice rinks or game centers, might lose out. They certainly are not specifically called out by the bill in the way that child care or mixed retail/housing are. The stakeholder group list is also pretty vague. We are talking about spending $65 million here, we need to take the extra time to work this stuff out first rather than tossing it in the lap of the executive branch and hoping for the best.

Bottom Line:

This is too much to spend on this grant program. We have a multiple other crises in the state that deserve more of the stimulus package than they are getting (mental health, water, transportation)

SB21-286 Distribution Federal Funds Home- and Community-based Services (Moreno (D), Rankin (R)) [Herod (D), McCluskie (D)]

*Technically a state stimulus bill*

PASSED

Appropriation: $281 million
Fiscal Impact: None beyond appropriation, arguably net positive with federal funds considered

Goal:

Take advantage of a one-year 10% increase in matching funds Medicaid will pay for home and community-based services for older adults and people with disabilities by appropriating $281 million in state funds to potentially receive $715 million in federal funds ($996 million total). The bill directs the state to come up with a plan to spend this money that meets federal requirements and lays out all of the potential spending areas. Plan must be approved by the legislature’s joint budget committee.

Description:

The entire setting to this bill is the federal stimulus bill passed earlier this year, so it is important to understand that first. The federal bill increased the amount of matching funds Medicaid will pay for just this year by 10% for home and community-based services for older adults and people with disabilities. There are specific limits on what qualifies for the increased matching funds and it only lasts for one year (ends next April).

The bill appropriates $281 million to a special cash fund created by the bill to draw the enhanced matching federal funds ($715 million is estimated maximum federal match, so a total of $996 million. Of this $261 million from the general fund and $20 million from the health care affordability and sustainability fund. The bill then directs the state to come up with a spending plan for this money, which must be approved by the joint budget committee in the legislature (this would be out of regular session, but the joint budget committee meets basically year-round. The committee must introduce a supplemental spending bill in the 2022 session to put the exact plan into the budget (the state does supplemental budgets for the entire government at the beginning of every session, generally they involve moving small amounts of money around or dealing with unexpected higher or lower revenues than forecast). The plan must be designed to maximize federal money and the state must seek feedback from Medicaid recipients, advocates, and providers.

There is a long list of things that money may be spent on (this is based on federal government guidance). These include:

Response and recovery efforts from COVID, which can include one-time provider rate increases for organizations directly impacted, one-time payments to support infection control, and grants to Native American tribes to increase access to and use of home and community-based programs on tribal lands
Advancement and acceleration of system reform efforts which can include support for local organizations and stakeholders to plan and prepare for case management redesign, analysis and development to stabilize rural providers and expand access in rural communities, new models of care for investment and innovation, pay for performance programs, improvement of certification oversight for providers, developing acuity tools for long-term health, training tools to align with 988 mobile dispatch, analysis and development of recommendations for implementing peer supports for day services for people experiencing homelessness, transition support service development for people with complex behavioral needs, provider capacity-building to serve high-intensity cases, development of cultural and disability competence training, and home and community-based services through the community first choice option in federal law
Investment in infrastructure and technology innovation that has long-term benefits. This can include integration with other states. Investments can include: comprehensive training for case managers and providers, enhancements for streamlined eligibility processes, member and family material related to case management and care coordination, expanding recipient access to technology and technology literacy training, capital funding for IT infrastructure purchases to support implementation of care and case management tools, and telemedicine and telehealth one-time payments to support equipment for service delivery
Development and stabilization of the workforce. This can include: analysis of nationwide efforts, development of a strategic plan, consideration of wage sustainability, development of training programs focusing on career pathways, and creation of a structure around recruitment, retention, and public awareness

The state must report to the legislature every quarter beginning November 1^st on the status of money spent from this fund.

Additional Information: n/a

Auto-Repeal: July 2025

Arguments For:

Bottom Line:

It would be foolish to pass up this opportunity to use $281 million to unlock $715 million in federal money. We have the $281 million of state funds to spend (thanks in large part to the federal stimulus). It is also important to understand that service in this area is a growing concern in Colorado as our population ages—we will need a lot more capacity and infrastructure
Because we want to maximize our matching money we have to be careful to follow federal rules, which the bill requires and tries to lay out according to guidelines released by the federal government
Because it is one-time money that can’t be saved up and won’t be available in future years we have to spend it on infrastructure, program development, and one-time items that don’t put us on the hook for future bills we cannot afford
The money can only be grabbed and spent this year, so we have to move fast. But the bill still keeps ultimate authority over plan approval with the legislature

In Further Detail: We would be foolish to pass up this opportunity. In essence what we are doing is spending some of the billions of dollars (yes billions with a B) we received from this same federal stimulus bill in order to leverage even more money out of the federal government to spend on typically cash-strapped care of adults and those with disabilities in these programs. Now this bill actually spends state money, but that is due to switching out state money for federal money in the massive transportation bill (SB260). So the whole thing is made possible by the federal stimulus and our ability to throw $260 million of it into transportation, freeing up $260 million of our state stimulus funds for this bill. Because we want to maximize our federal matching dollars, we have to ensure we are spending the money in the right way but this is quite literally a use or lose it proposition so there is no time for in-depth study and no ability to sock the money away for long-term payout. We also have to understand that these are one-time funds, so we cannot create any structures that we cannot support once all of this money is gone. That means spending on infrastructure and development, not on permanent rate increases we won’t be able to handle in two years. Which is not going to be a problem in this area (just because we cannot spend on wages and reimbursement doesn’t mean we will be wasting money), the state’s population is aging and we need a lot more infrastructure to handle our future needs in this area. The bill also does not cede ultimate control from the legislature. To be frank, the joint budget committee creates the budget every year. To be sure other lawmakers will fiddle around the edges and the governor submits a recommended budget, but this is the committee that really sets the spending for the entire state (it is why it is considered the most powerful committee in the legislature). So joint budget approval of nearly $1 billion in spending is equivalent to legislative approval and of course the entire legislature will have its say on the supplemental bill next year. Bottom line: we are spending $281 million of state funds in order to access more than double that in federal money. Nearly $1 billion in total that are contributing $281 million to ourselves, which we have due to our state stimulus money. Again, a no-brainer.

Arguments Against:

Bottom Line:

This money is not free, it comes out of the federal government and increases the size of the national debt, which continues to skyrocket ever higher without any sign of either party really caring (really caring means setting aside your own priorities, whether that is tax cuts or social spending programs, to pay down the debt). So we can in fact reject the idea of contributing to that debt as a state and not see how fast we can spend $1 billion

Bottom Line:

By next year this will be a fait accompli for the entire legislature to rubber-stamp, not have any real say in. If we are going to spend $1 billion then let’s have the entire legislature approve the plan, not just the six that sit on the joint budget committee. A special session in the Fall gives the state enough time to come up with a plan for approval. We might need one anyway to spend some of the federal stimulus money

Bottom Line:

You can see the awkward fit here with all of the rules on spending and the basic concept that the biggest problem in this sector, wages and reimbursement for services, cannot be addressed with one-time money. Since we have billions of dollars of transportation needs we actually can very easily spend $261 million on, what we should do is keep the $261 in SB260 (or whatever vehicle) and then add the federal stimulus money on top of it. In effect double what we are spending on our roads rather than try to make round pegs fit in square holes

SB21-268 Public School Finance (Zenzinger (D), Lundeen (R)) [McLachlan (D), McCluskie (D)]

SIGNED INTO LAW

AMENDED: Very Significant (category change)

Appropriation: Other than money already designated in the budget, $13,610,665 of which $3.5 million is federal money
Fiscal Impact: Best understood from perspective of budget

Goal:

Set per-pupil funding for the 2021-22 school year, with a boost of $77 million to be distributed on top of the formula to account for reduced price school lunch kids and English language learners and permanently change the school finance formula to include reduced price school lunch kids and English language learners (this will boost schools who have more of these kids enrolled). Also fund multiple programs that had funding cut last year and make other smaller changes.

Description:

Sets the per-pupil amount for the 2021-22 school year at essentially $8,857 $8,991 on average (the base rate is lower but the formula adds in amounts for various things), which is a 9.7% 10.7% increase over last year. However, the bill also adds $77 million which is to be distributed on top of the formula (the per pupil calculation is a complex formula that takes multiple elements into account in each school) based upon how many students in the school qualify for reduced price lunch (not free lunch, which is already accounted for in the formula) and how many are early English language learners. The bill also permanently changes the state’s school funding formula by giving reduced price lunch kids the same weight as free lunch kids (previously reduced price lunch kids did not matter in the formula at all) and adds English language learner pupils as well (at 8% of per pupil funding, so you get an 8% bump). Those two changes will provide an additional $118 million in funding for schools across the state, which is mostly offset by the state not having to pay as much money to backstop schools due to a different bill in this session dealing with property mill levy overrides (which in essence will raise property taxes in some districts around the state).

Requires the state board of education to approve or reject local school board decisions on innovation school plans. This must be based upon serving the best interests of students, families, and the community (this is basically the same oversight the board has for charter schools). Forbids local school board from making any changes to innovation school plans during the 2021-22 school year.

Requires any board of cooperative services (school districts that band together), before operating or locating a full-time school within the boundaries of another district that is not part of the co-op, to obtain permission from that district. Does not apply retroactively and only applies for this school year.

Also makes some appropriations to specific programs: $2 million to the school counselor corps program, $800,000 for the 9^th grade success program, $493,907 for the local accountability systems grant program, $2.5 million for the K-5 social and emotional health pilot program, $3 million for the behavioral health care professional matching grant program, $2 million to the mill levy equalization fund, $1.75 million in federal stimulus funds for the concurrent enrollment expansion and innovation grant program, $1.75 million in federal stimulus funds for the career development success program, $410,221 for the imagination library, $375,807 for the school leadership pilot program, $280,730 for the accelerated college opportunity exam fee grant program, and $250,000 for the automatic enrollment in advanced courses grant program.

Additional Information:

Allows the state to take action against an educator’s license for an offense committed in another state which is similar to a felony drug offense in Colorado.

Extends the accreditation contract with the state’s charter institute (which runs the state’s charter schools) by 18 months.

Gives school boards an extra month to certify mileage reimbursement amounts to the state and the state another month to certify those to the state treasurer.

Changes the amount of time schools have to set alternative dates for determining pupil enrollment from 45 calendar days to 45 school days after the first school day.

Allows schools to keep more than 15% of the READ funds they received for the 2020-21 school year into next year (usually they can only keep a maximum of 15% year-to-year). This is for this year only.

Removes a $10 funding cap on the existing school counselor corps grant program.

Auto-Repeal: n/a

Arguments For:

Bottom Line:

We dramatically raised the per-pupil funding through the budget process (aren’t relitigating that here, what there is to spend is what there is to spend at this point) and restored funding to a bunch of programs that got cut last year
Reduced price lunch kids and English language learners add costs to districts that aren’t currently accounted for in our per-pupil formula. The bill adds extra money on top of the formula to account for that this year while another bill looks at the formula itself Given the money the state will save thanks to a different bill in this session that in essence allows districts to get more property tax money (voter approved already), we can add these elements into the formula without taking money away from other schools (though they will gain less)
Many of the other changes are related to the pandemic, for innovation schools, it makes sense to treat them like charters in how the state board of education oversees their interaction with local school boards a one-year pause in any changes makes sense due to the pandemic

In Further Detail: Obviously the first thing to point out here is that we dramatically raised the per-pupil funding amount just through the budget process (which we aren’t going to rehash here, once you’ve decided on the budget, that’s what it is and you can only make changes around the edges, which the bill also does). We’ve also restored funding to a bunch of grant programs that got cut in last year’s budget tightening. But the big thing to discuss is the reduced price lunch and English language learner changes. A different bill deals with adjustments to the underlying formula itself, but The essence of the issue here is that our finance model for schools hasn’t been working for schools in the state located in low-income areas because the only thing that mattered was free lunches, not reduced price. Obviously it is a big deal to a school if they have students on reduced price meals, but that has not been part of our state’s formula. The same is true of having students who are English language learners. Now this is generally a zero-sum game, so a gain for these schools is a loss for others and that is why this long-needed change hasn’t happened yet. So this bill puts additional money towards those areas while the formula itself is not touched here, but the effect is roughly the same Now, though, with a different bill in this session allowing districts who have passed TABOR revenue overrides for their property taxes for schools to actually keep that extra money (way too complicated to get into here, look at HB1164 for more detail), we can make this change without creating losses for any districts (some will just gain less than others). Many of the other changes in the bill are administrative in nature, for the innovation schools, it makes sense to treat them like charters in how the state board of education oversees their interaction with local school boards a one-year pause in any changes makes sense due to the pandemic (which is what several of the other parts of the bill are about too). For the chronic abseentism change, we need to pay more attention to chronic absenteeism as a warning sign that needs intervention and put more effort into so-called habitually disruptive students before we kick them out of school and push them down a dark path that few recover from.

Arguments Against:

Bottom Line:

There’s no reason to have this weird additional money setup in this bill and then look to change the formula in another bill—just change the formula in this bill permanently. We have the basis to do it now without creating a situation where districts will lose money, thanks to a different bill in this session that will save the state money spent on education (districts will get more property taxes)

Bottom Line:

There is a fundamental difference between free and reduced price lunches that we would be missing if this becomes law. The current school formula has served us well and should be continued, at least until the in-depth study that a different bill in this session proposes is done

SB21-291 Economic Recovery And Relief Cash Fund (Fenberg (D), Holbert (R))

PASSED

AMENDED: Minor

Appropriation: $848.8 million of federal stimulus money
Fiscal Impact: None beyond appropriation

Goal:

Put aside about $800 million of federal stimulus money to spend in the future on assistance to small business, aid to businesses impacted by COVID, assistance to unemployed workers, contributions to the state unemployment fund, relief efforts for unmet needs (especially in communities disproportionately impacted by COVID), assistance to individuals and households, assistance to non-profit organizations, public health expenditures for COVID-19 response and prevention including staff and adminstrative costs, and investments in water, sewer, or broadband infrastructure. A task force is to study how to best spend this money over the rest of this year. Spend $40 million of federal stimulus money on business aid that fits that criteria now, with $10 million set aside for rural Colorado.

Description:

Transfers $848.8 million of federal stimulus money (this is not money that is from the SB-289, the revenue replacement money, but from the rest of the federal stimulus) to the Economic Recovery and Relief Cash Fund, which is created by the bill. The legislature is allowed to appropriate money out of this fund for: assistance to small business, aid to businesses impacted by COVID, assistance to unemployed workers, contributions to the state unemployment fund, and relief efforts for unmet needs, especially for communities disproportionately impacted by COVID. Money can also be spent on investments in water, sewer, or broadband infrastructure.

The bill then spends $40 million of this money by sending it to the already existing Colorado economic development fund, which must use $10 million to incentive small businesses to locate in rural Colorado and for the existing employment incentive program (which is location-neutral and provides cash incentives for businesses that hire new employees who work remotely from rural areas of the state). The other $30 million must be used by the office to provide grants to small businesses or undertake any other economic development activity allowed by the bill in response to negative economic impacts of COVID.

For the rest of the money, the leadership from both parties of both legislative chamber is to create a task force to meet during the 2021 interim (after end of 2021 session and before start of 2022 session) to create a report with recommendations on how to spend the money to provide a stimulative effect to the state’s economy, necessary relief for Coloradans, or that address emerging economic disparities resulting from COVID. The joint budget committee staff will examine the report to look for programs that duplicate existing programs and programs that would require ongoing appropriations (which we don’t want because this is one-time money). No bill drafts from the task force, which is paid for by the fund.

Additional Information: n/a

Auto-Repeal: July 2027

Arguments For:

Bottom Line:

Better to look before we leap with at least a large chunk of our federal stimulus money, given the massive state stimulus already spent this year it isn’t time critical (and we are spending lots of federal stimulus money too, in other bills) and it gives us some time to observe the effects of the money already spent
As for the $40 million, rural Colorado was already struggling before the pandemic and was hit hard. Remember that there are a bunch of stimulus bills spread all over this session, so we’ve spent in a lot of other areas, specifically for businesses, already, but just $8 million specifically for rural Colorado so far. And the bill only directs $10 million specifically to rural Colorado. The rest can be spend anywhere in the state to help businesses recover from the pandemic

In Further Detail: We have a lot of money to spend and it is better to look before we take huge leaps. We know the rough areas we want to invest in, but given the massive state stimulus this year and the large amounts of the federal stimulus we are already spending, it makes sense to set aside about $800 million and say we will decide in the future how we are going to spend it. It also gives us a chance to observe how the money spent this year is doing. As for the $40 million, we know rural parts of the state were already struggling before the pandemic and, like typically happens during periods of extreme economic shock, were hit harder by the pandemic. These funds can help build economic stability into all parts of the state. It is also always important to remember when dealing with these stimulus bills that you cannot consider just one bill in a vacuum. There is enormous amounts of money flowing out the state into all sorts of areas, and for businesses, we’ve already spent $65 million on commercial center revitalization, $30 million on a loan program for businesses, $10 million on events and meetings, $15 million on grants for small businesses, and $10 million on the creative arts industry. But just $8 million specifically on rural Colorado so far. And the bill only directs $10 million specifically to rural Colorado, the other $30 can be spent anywhere in the state to help businesses recover from the pandemic.

Arguments Against:

Bottom Line:

It is too limiting to simply say that rural Colorado was hit hard and needs help. It is not too difficult for us to determine which communities in the state (the entire state) need the most help. Yes, $30 million is not dedicated to any area in particular, but that also means it is not dedicated to communities hit the hardest by the pandemic. In other words, we have $10 million for rural Colorado and $30 for everyone. We should carve out more for other communities hit hardest by the pandemic. They need the most help

SB21-256 Local Regulation Of Firearms (Fenberg (D), Moreno (D)) [Hooton (D), Daugherty (D)]

PASSED

AMENDED: Minor

Appropriation: None
Fiscal Impact: None

Goal:

Remove the current prohibition on local governments setting their own ordinances, regulations, and laws around the sale, purchase, transfer, or possession of firearms, ammunition, firearm components, or accessories as well as around prohibiting concealed carry of handguns, even with a valid permit, in buildings or specific areas within the jurisdiction of the local government. Any local restriction must be at least as restrictive as state law.

Description:

Allows local governments to set their own ordinances, regulations, and laws around the sale, purchase, transfer, or possession of firearms, ammunition, firearm components, or accessories as well as around prohibiting concealed carry of handguns, even with a valid permit, in buildings or specific areas within the jurisdiction of the local government. All such deviations from state law cannot be less restrictive than state law. For concealed carry, if a local government decides to enact something more restrictive, they must post signs at public entrances to the buildings or areas informing the public that concealed carry is prohibited. Special districts and institutions of higher education can enact their own concealed carry bans. Penalties for non-compliance must be a civil penalty and no more than a $50 fine for a first offense. Anyone who refuses to leave the premises can be subject to criminal penalty.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

Boulder had an assault weapons ban struck down just days before the Kings Soopers shooting (although the shooter in that case was from Arvada and would not have been affected) and the University of Colorado attempted to ban concealed carry on its campus in 2012 but ran afoul of the same state law
All this bill does is allow local communities to make their own choices (so long as they are at least as restrictive as state law). It is entirely constitutional to ban concealed carry or to have an assault weapons ban
Colorado is one of just two states that forces all colleges to allow concealed carry in all circumstances. Young people, drugs, alcohol, and guns are not a good mix and the good guy with a gun is in the vast majority of cases a fantasy that is more likely to result in shooting the wrong person or injuring bystanders
Local bans may not stop every shooting but we sometimes apply too much logic and cold reasoning to situations where highly unstable individuals are involved. Some people may in fact be daunted by not being able to buy an AR-15 in their community and not seek it out elsewhere. Just because a law doesn’t stop every mass shooting doesn’t mean it isn’t worth it to stop even one

In Further Detail: This is in direct response to recent events in the state. Although it would not have affected the King Soopers shooter, Boulder had an assault weapons ban, which had been enacted by its local representatives, struck down just days before that shooting. Because of existing state law, that this bill reverses, which does not allow any local jurisdictions to preempt state law in this area. Back in 2012 the University of Colorado attempted to ban concealed weapons on its campus, it ran afoul of the same law. If there are communities in the state that don’t want to be more restrictive than state law, this bill allows them to keep functioning as they are. But for those places that do want more restrictive laws (which are by the way entirely constitutional, they exist in other places and we had an assault weapons ban on the federal books for decades that disappeared not due to a court challenge but lack of action in Congress) this bill lets them do just that. Let’s also be clear about the precedents when it comes to concealed carry restrictions. No less a conservative judge than Antonin Scalia wrote that the 2^nd amendment does not cast the validity of laws forbidding the carrying of firearms in sensitive places such as schools. We of course already ban concealed carry on K-12 school grounds. In fact, there are only two (TWO!) states that force colleges to allow concealed carry in circumstances: Colorado and Utah. There are ten others that allow it in some circumstances with leaves 38 other states that don’t allow it at all. Beyond the fallacy of the good guy with a gun argument, which we’ll get to, college is also a place of heavy drug and alcohol use, where mental illness can sometimes reveal itself for the first time, and a place where a high number of young adults without fully developed brains, in particular the critical areas dealing with risk (doesn’t happen until your mid 20s). This is not a place for concealed weapons. As for the good guy with the gun, civilians are not trained to assess and react to active shooter situations and may be just as likely to shoot innocent bystanders as the gunman. At the shooting at the STEM school in 2019 a security guard who was not supposed to have a concealed weapon mistakenly shot at a responding police officer and missed, wounding two students. In addition, this lack of training may result in a tragedy where a concealed carry individual believes someone has a gun when in fact they do not. It is also nearly impossible for police reacting to the scene to suss out who the good guys and the bad guys are, which can (and has) led to police shooting a bystander who was trying to help. This happens far too often with trained police officers already. Since Columbine, police training to react to these mass shooter incidents has improved greatly and they are more likely to resolve any active shooter situation in the best manner possible. Civilians are also more likely to be sloppy with their guns, leaving them in bathrooms or classrooms for others to find (this has happened in other states). In addition, while it is true that permit holders are vetted, we don’t allow them in the state capitol, where the legislators work. It isn’t a stretch to extend that courtesy elsewhere. On the confusion front, the bill requires signs to help people understand and any such changes are likely to be extremely public and hotly debated. As for the other half of the bill, yes it is true that local rules around banning items like assault weapons may have more limited impact if someone can just go 10 minutes down the road to get what they want. It is also true that the Boulder shooter was actually from Arvada, so the ban would not have helped. But sometimes we apply too much logic and cold rational thought to these situations. For the most part, mass shooters are highly unstable individuals and it is entirely plausible that someone thinking about attempting a mass shooting might be daunted by being unable to buy an AR-15 or similar weapon of war in their area and not take the extra effort to go elsewhere. Will this stop every mass shooting in a community that has such laws? Of course not, it is ridiculous to say that if a gun safety law won’t stop all shootings than it isn’t worth it. Because if it prevents one, that is people who are alive who would not otherwise be. Fathers, mothers, brothers, sisters, husbands, and children who don’t realize that but for this one gun safety law, they would be dead. So if the law is constitutional (check), supported by the local citizens (check), and has the potential to save lives (check), we need to enact it without worrying if it will solve all of our problems at once.

Arguments Against:

Bottom Line:

This is a recipe for confusion on both halves of the bill, with particularly problematic confusion on concealed carry, where one minute you are fine and the next you are breaking the law. It is also unequal treatment when it comes to access to firearms across the state
If state borders aren’t enough to ensure efficacy of gun safety laws (Chicago frequently blames Indiana law for the amount of guns in the city) then local borders sure won’t. In fact they will probably be much worse
We need to allow people with valid concealed carry permits to protect themselves and others. Otherwise the only people at these locations with guns will be the bad guys when they show up. Having a concealed carry permit means vetting by the state
College campuses can be dangerous places for women in particular and they deserve the right to protect themselves as they see fit

In Further Detail: This is a recipe for confusion. One moment you are perfectly fine with your concealed carry weapon and then the next you are breaking the law. Maybe, like most people, you don’t read every sign you come across or don’t pay obsessive attention to the news. Or maybe you show up, see the sign, and then what? If you don’t feel comfortable leaving your gun in your car (or didn’t travel with one), you have to go all the way home to leave your gun in a safe place? And for the other half, not only is this a burden on all gun buyers and sellers to keep up with local ordinances and laws, it is also unequal treatment across the state. Let’s say Boulder reenacts its ban. Now anyone who lives in Boulder cannot exercise their constitutional right to arms in the same way someone living in Fort Collins can. Just a quirk of geography. And the effectiveness of such actions could be slim to none. An argument you hear a lot from states that have strict gun laws but lots of gun violence is that people are simply going across state lines. The prime example of this is Chicago and Indiana. Well multiply that by a thousand if all you have to do is go across city lines. On concealed carry, the elimination of the ability to have concealed guns at various locations, including colleges, means the only people with guns at schools are bad guys, which leads to the unfortunate shootings that have become all too common being worse as there is no one the scene to intervene. A good guy with a gun on the scene could nip many of these situations in the bud, as we have seen several times in the last year where the death toll could have been higher but for the immediate intervention of a bystander who had a gun. Someone has to have a valid permit in order to do this, so they have already been vetted by the state, to carry a gun around in public situations. Think about women on college campuses who want to protect themselves with more than just pepper spray. Or who fear a stalker or abuser. We must allow these folks the ability to protect themselves as they see fit.

Bottom Line:

There are two clear steps here that would go a long way toward ending gun violence. Ban both of these things, statewide. All those reasons listed in Arguments For for the fallacy of good guys with guns applies wherever you are. We should just remove concealed carry entirely from state laws. And assault weapons, there is simply no reason to need a weapon of war designed to kill as many people as possible within a short period of time. None whatsoever. That’s why we passed an assault weapons ban in 1994. Subsequent studies have shown that since 2004, when the ban lapsed, we’ve seen a rise in the number of fatalities due to mass shootings (not number of shootings themselves) which makes complete sense: you made it harder to kill a lot of people within a short period of time, so mass shootings resulted in fewer causalities. The Washington Post just did a full write-up on the research and concluded that previous claims by fact checkers in the wake of the ban’s expiration that it did not reduce death were wrong. So let’s join 8 other states that already have assault weapons bans

SB21-260 Sustainability Of The Transportation System (Fenberg (D), Winter (D)) [Garnett (D), Gray (D)]

PASSED

AMENDED: Moderate

Appropriation: $550 million this year, of which $380 million is federal money, more in future years
Fiscal Impact: Beyond appropriations, loss of about $20 million this year, then gain of about $125 million next year, $195 million year after that, and $3.5 billion over next ten years

Goal:

Raise $3.5 billion over ten years through a variety of new fees.

About $1.5 billion through new usage fees on gas (in effect raising the gas tax) with an extra $0.08 per gallon by 2031. Hundreds of millions through new registration fees on electric and hybrid vehicles, with electric vehicles costing $96 by 2031 and hybrids $27 to register. Spend $402 $420 $380 million in state federal stimulus money this year, $170 million in state stimulus money this year, and at least $115 million each year thereafter through 2031 in general fund money. All of this goes to state highway users fund, state highway fund, and multimodal transportation fund.

About $1.2 billion raised through a new fee on retail deliveries, with a $0.27 fee per delivery charged to the consumer in the same way as sales tax. Hundreds of millions raised through a new per ride fee on transportation networks like Uber or Lyft, with a $0.30 fee on non-electric and non-pool rides and $0.15 on electric or pool rides (again treated like sales tax). For the most part, these fees go to fund several new enterprise programs designed to help the state electrify its transportation, which includes building charging infrastructure, helping electrify vehicle fleets (like delivery fleets), public transit and individual vehicles.

All fees gradually rise to their 2021 levels beginning in 2022 and are tied to inflation past 2031.

The bill also repeals a ballot question for the 2021 ballot that would have asked voters to approve a bond initiative for $1.3 billion for transportation needs, eliminates a reduction in the TABOR revenue cap due to a piece of legislation in 2017, and allows for the creation of regional transportation planning organizations which can ask voters to raise taxes in their area to fund transportation needs in their area (RTD is an example of such a organization).

Description:

This is in essence at least 10 separate bills and perhaps 15 all in one massive bill. So we are going to do this a bit differently. Each separate “bill” will have its own header and section both here and in Additional Information. Because the new retail delivery fee and per ride fee impact multiple proposed (and one existing) enterprise, we will discuss them first, then refer again to them where appropriate. An enterprise program is exempt from TABOR, so any revenue brought in by the enterprise does not count toward the state’s annual TABOR cap (which triggers a refund to taxpayers if the state brings in more revenue than the cap). If you are interested in the total revenues, there is a section at the end of the Description that describes total revenues under the bill. Where appropriate, each sub-section has its own revenue information as well.

Retail Delivery Fee and Per Ride Fee

The retail delivery fee is charged to any tangible personal property delivered by a motor vehicle to a physical address in Colorado. Much like sales tax, it is passed on the consumer and then remitted to the department of revenue. In 2022-23, the fee is $0.084 for existing funding streams for state transportation, $0.027 for the bridge and tunnel enterprise (already exists but is called just bridge enterprise right now), $0.053 for the clean fleet enterprise, $0.069 for the community access enterprise, $0.03 for the clean transit enterprise, and $0.007 for the air pollution mitigation enterprise ($0.27 total). After 2022-23 each separate fee is tied to inflation and only adjusted when inflation is positive and will result in an increase of at least $0.01 (bit complicated here and looks like drafting error, but right now the consideration is clean fleet+air pollution mitigation, if those are adjusted then others can also be adjusted, except bridge and tunnel text says all together). Maximum of 5% increases regardless of actual inflation (same as interest calculation). Any deliveries of property that is exempt from state sales tax is also exempt from this fee. $75.9 million raised through this fee in 2022-23.

The Per Ride fee is charged to any prearranged ride through a digital network. Again like sales tax, passed on to customers and then remitted to the department of revenue. In 2022-23, the fee is $0.0375 for rides in a zero emissions vehicle or for car share rides (riders agree to be transported with other separate riders going to other destinations even if another rider doesn’t actually end up being in the vehicle) for the clean fleet enterprise and $0.1125 for the air pollution mitigation enterprise ($0.15 total) and $0.075 for all other prearranged rides for the clean fleet and $0.225 for the air pollution ($0.30 total). Thereafter it is tied to inflation and only adjusted when inflation is positive and will result in an increase of at least $0.01 (cumulatively with both fees considered). Maximum of 5% increases regardless of actual inflation (again cumulatively). $9.7 million raised through this fee in 2022-23.

Restore Referendum C Cap, Associated Appropriations, and Raise Gas Tax

Creates a road usage fee, which is to be added to each gallon of gas sold (on top of the gas tax) of $0.02 a gallon in 2022-23, $0.03 in 2023-24, and an increase of one cent per gallon each year until we reach $0.08 in 2028-29. Then it stays at the level until 2032-33, at which point it is tied to inflation (using $0.08 in 2030 as the baseline). It’s a bit tricky here but the bill also ties the existing gas tax to inflation at that point. The gas tax is $0.22 a gallon and the bill adds whatever the inflation is for the $0.22 to the usage fee (again based on $0.22 in 2030). The exact same operation is applied to special fuels (diesel engine fuel, kerosene, liquefied petroleum gas, and natural gas), which pay an excise tax instead of the gas tax but it’s the same amount, $0.22, right now. $60.1 million raised in 2022-23 through this usage fee. The fiscal note estimates the usage fees will actually cause a decrease in gasoline consumption and so bring in less money each year through the main gas tax (the usage fee is being treated separately), but that could also occur simply due to more widespread adoption of electric vehicles. In any event, the estimate is a $100,000 decrease in gas tax revenue each of the next two years. That nets out to a $60 million increase. This jumps to $91.8 million the next year.

Distributors do not have to pay the special fuel usage fee if they are exporters delivering exclusively to another state or if they already do not have to pay the excise tax thanks to other existing state law.

As a reminder the retail delivery fee also has money going toward these existing funds. This portion is to be divided up with 71.9% going to the state highway fund and 28.1% to the multimodal transportation and mitigation fund (see below for more detail on changes to this fund).

Reverts a change in 2017 that set the TABOR revenue limit lower. This was part of a deal in 2017 that removed a certain hospital provider fee from state revenues by making it an enterprise program. In exchange, the TABOR revenue cap was lowered. By removing that provision, this bill resets the TABOR revenue cap about $225 million higher in 2021-22 and in later years the TABOR limit will be revised as required by the constitution based on that higher amount.

Repeals a scheduled $50 million transfer of general funds to the state highway fund every year through 2040 and replaces it with multiple larger transfers (all from general fund): $329 $347 $331 million million to the state highway fund, of which $161 million is federal stimulus money, $24 $36.5 million to the highway users tax fund, $128 $161.3 million to the multimodal transportation and mitigation fund from federal stimulus funds, and $8 $21.6 million in federal stimulus money to the revitalizing main streets program in the state highway fund ($550.4 million total). Then next year a transfer of $12 million to the highway users tax fund. And starting next year, every year through 2031 a transfer of $10.5 million to the multimodal fund, $7 million to the revitalizing main streets program. There’s still more. Starting in 2024 and then every year through 2031 2028, $82.5 $100 million to the state highway fund, of which $5 $10 million a year must be spent on mitigating environmental and health impacts of increased air pollution from motor vehicles in areas where air quality does not meet federal standards by funding projects that reduce vehicle miles traveled or directly reduce air pollution. From 2029-2031, $82.5 million each year to the state highway fund. From 2024 to 2031, $10.5 million to the multimodal fund and $7 million to the revitalizing main streets program. Starting in 2022 through 2026, at least $115 million and at most 50% of the excess revenue allowed by lifting the TABOR cap (as done above), with 94% going to the multimodal fund and 6% to the revitalizing main streets program.

Change Registration Fees and Impose Electric Vehicle Fee

Ties the existing $50 registration fee for electric vehicles to inflation, with a maximum increase of 5% a year. Adds a new electric vehicle road usage fee beginning in 2022-23 which is also due at registration. This includes hybrids but the fee structures are very different. For pure electric vehicles this begins at $4 in 2022-23, then increases each year, more gradually at first with $4 annual increases until it reaches $16 in 2025-26. Then $10 increases each of the next two years to reach $36 in 2027-28, then $15 each of the next four years to reach $96 in 2031-32. For hybrids, it starts at $3 in 2022-23, then alternates between increasing by $2 and by $3 each year up to 2031-32 at which point it is $27. At that point both fees are tied to inflation with maximum increases of 5% a year. Obviously this starts small, just $300,000 in additional revenue in 2022-23. The fiscal note does not go very far into the future, and obviously wide-spread adoption of electric vehicles is an unknown variable. The official state roadmap is 940,000 electric vehicles by 2030. Assuming no hybrids in that count, that would bring in $90 million at the full $96 fee level. Of course there will be a concurrent plunge in gas but that is extremely difficult to estimate. As a point of reference, right now we bring in $322 million in gas tax revenue each year. Note that the fiscal note expects slight declines even with the increase in the tax, though that might reverse as we get farther out and the full $0.08 additional fee comes online. Remember also that doing nothing would cause declines in gas tax revenue simply through more electric vehicle adoption and ever increasing fuel efficiency standards.

State is to create a pilot program that allows these two usage fees to be paid quarterly on an automated basis.

Also creates a commercial electric vehicle usage fee which is simpler: it is $50 for vehicles over 10,000 pounds but less than 26,000 and $100 for vehicles more than 26,000 pounds. Also starts in 2022-23 and is tied to inflation, again with the maximum 5% increase per year. The fiscal estimate for this is tied in with the other electric vehicle fees.

All of the revenue from these new usage fees goes 70% to the highway users tax fund and 30% to the state highway fund.

Reduces the road safety surcharge on vehicle registration (which goes to the bridge and tunnel enterprise) by $11.10 between 2022 and 2023 and by $5.50 between 2022 2023 and 2024. This will cost the state $33 $49.5 million a year at full implementation (but it is temporary).

Community Access Enterprise

Creates the Community Access Enterprise, which is a TABOR exempt enterprise. Its purpose is to support the widespread adoption of electric motor vehicles by directly investing in transportation infrastructure, making grants or providing rebates or other financing options to fund the construction of electric motor vehicle charging infrastructure throughout the state, and incentivizing the acquisition and use of electric motor vehicles and electric alternatives to motor vehicles in communities. This must include disproportionately impacted communities and owners of older, less fuel efficient, and higher polluting vehicles.

Community access enterprise is to implement grant, loan, or rebate programs to fund construction of electric motor vehicle charging infrastructure that includes:

Public, workplace, transportation network company, and multi-family applications
Chargers for communities, including disproportionately impacted communities
Chargers for medium and heavy duty vehicles, including electrified refrigerated trailers
Infrastructure for hydrogen fuel cell vehicle power
Networks and plazas of direct current charging infrastructure that offers fast charging

Grant, loan, and rebate programs also implemented for providing inexpensive and accessible electric alternatives to motor vehicles like electrical assisted bicycles and scooters, support adoption of electric vehicles including incentivizing replacement of high-emitting cars, and to provide incentives to transportation network companies and companies to that rent to them to increase access to overnight charging ability for drivers.

Enterprise also to work with the state’s energy office and department of transportation to develop rules for the air quality commission to consider in furtherance of the enterprise’s purpose.

Enterprise can issue bonds, hold property, employ people and contract with third parties, and seek and accept gifts, grants, and donations (so long as they are less than 10% of total revenue which is required for enterprises). Board consists of seven members who are not compensated but can be reimbursed for expenses.

Enterprise must engage regularly on its projects and activity with the public, especially from disproportionately impacted communities and interest groups that are likely to be interested in its projects and activities. It must create a ten-year plan by June 2022 and post it on its website. This plan must include amount of funding needed. Then in 2032 it must create a new ten-year plan. It must also create and maintain a public accountability dashboard on its website that provides information on implementation of the plan, funding status and progress on each project, and per project and total funding and expenditures. Must report annually to the legislature.

As a reminder, the enterprise is funded by solely by its portion of the retail delivery fee.

Clean Fleet Enterprise

Creates the Clean Fleet Enterprise, which is a TABOR exempt enterprise. Its purpose is to incentivize and support the use of electric motor vehicles by businesses and governmental entities that own or operate fleets of motor vehicles, including situations where the vehicles are owned by individual contractors (like Uber or Grubhub). This can include compressed natural gas vehicles powered by recovered methane as well. This is to involve grant programs, rebate programs, revolving loan funds, or other such strategies the board finds effective, to:

Help public and private owners and operators of motor vehicle fleets finance electric vehicle acquisition, and if electric vehicles aren’t available in the heavy-duty models required by some, natural gas trucks so long as at least 90% of the fuel for the trucks will come from recovered methane
Assess and implement cleaner mobile source technology to support electrification of vehicles and fleets
Coordinate engagement with public entities and owners and operators of motor vehicle fleets to develop strategies for electrifying fleets
Research and assess innovative and emerging emission strategies for motor vehicles and engines and modernize and improve current testing, inspection, and readjustment services offered by the state
Provide training and development of a clean transportation workforce to support adoption of electric vehicles in fleets
Research and develop strategies, business plans, and guidance to support the consistent application of grants and other business services, including remediation services
Provide outreach, education, and training to support the successful application and performance by entities receiving funds
Provide or support the delivery of companion services such as fleet testing, inspection, or readjustment services
Address non-attainment of national air quality standards before even stricter measures are necessary that would impose burdens on fleet businesses
Address community exposure, including disproportionately impacted communities, and resulting Reduce health disparities from fleet operations in impacted communities
Help companies that maintain fleets and rent vehicles in those fleets to drivers to purchase or lease electric vehicles
Help transportation network companies provide incentives for their drivers to use electric vehicles
Provide additional remediation services to fee payers including incentivization of clean mobile equipment, planning services to support communities, and provide scrappage services

Enterprise also to work with the state’s energy office and department of transportation to develop rules for the air quality commission to consider in furtherance of the enterprise’s purpose.

Enterprise can issue bonds, hold property, employ people and contract with third parties, and seek and accept gifts, grants, and donations (so long as they are less than 10% of total revenue which is required for enterprises). Board consists of 9 members who are not compensated but can get reimbursement for expenses.

As a reminder, the enterprise is funded by its portion of the retail delivery fee and its portion of the per ride fee. The enterprise must ensure that during the first ten fiscal years of collections, expenditures that support transportation network company operations equal or exceed cumulative per ride fee revenue (remember that revenue is coming from people using those transportation network companies, like Uber).

Clean Transit Enterprise

Creates the Clean Transit Enterprise, which is a TABOR exempt enterprise. Its purpose is to reduce and mitigate the adverse environmental and health impacts of air pollution and greenhouse gas emissions produced by motor vehicles making retail deliveries by supporting replacement of gas-powered vehicles with electric-powered vehicles, providing the associated recharging infrastructure for electric transit fleet vehicles, supporting facility modifications that allow for the safe operation and maintenance of electric transit motor vehicles and funding planning studies that enable transit agencies to plan for electrification of vehicles.

Enterprise can makes grants, loans, or rebates to fund: clean transit planning efforts, facility upgrades and construction of charging infrastructure for public transit providers, and replacement of gas powered motor vehicles with electric motor vehicles for public transit providers.

Enterprise also to work with the state’s energy office and department of transportation to develop rules for the air quality commission to consider in furtherance of the enterprise’s purpose.

Enterprise can issue bonds, hold property, employ people and contract with third parties, and seek and accept gifts, grants, and donations (so long as they are less than 10% of total revenue which is required for enterprises). Board consists of 9 members who are not compensated but can get reimbursement for expenses.

As a reminder the bridge and tunnel enterprise also collect a portion of the retail delivery fee.

Change Multimodal Transport By Adding Mitigation

Renames the existing multimodal transportation options fund into the multimodal transportation and mitigation options fund. Expands the mission of the fund to include reducing emissions of air pollutants, including hazardous air pollutants and greenhouse gasses, that contribute to adverse environmental effects and adverse human health effects. Allows the fund to spend on greenhouse mitigation projects, which are defined as a project that helps obtain compliance with federal or state laws or rules that regulate transportation-related greenhouse gas emissions by reducing vehicle miles traveled or increasing multimodal travel.

Removes existing rules on how money given to the fund must be spent (85% for local multimodal projects and 15% for state multimodal projects right now). Allows the state to exempt local projects on an individual basis from current matching funds requirements.

Appropriates $2.5 million to the fund in 2022 for front range rail.

Non-Attainment Area Air Pollution Mitigation Enterprise

Creates the Non-Attainment Area Air Pollution Mitigation enterprise, which is a TABOR exempt enterprise. Its purpose is to mitigate the environmental and health impacts of increased air pollution from motor vehicle emissions in non-attainment areas (areas where the air quality does not meet federal standards) by providing funding for projects that reduce traffic, including demand management projects that encourage alternatives to driving alone or that directly reduce air pollution, such as retrofitting construction equipment, construction of roadside vegetation barriers, and planting trees along medians. To be eligible, a project must either be eligible for federal highway mitigation funding or reduce emissions of air pollutants or greenhouse gas pollutants.

Enterprise is to award grants. It must actively seek input from communities, including disproportionately impacted communities, and local governments to mitigate environmental and health impacts of highway projects, reduce traffic congestion, and improve neighborhood connectivity for communities adjacent to highways.

Enterprise can issue bonds, hold property, employ people and contract with third parties, and seek and accept gifts, grants, and donations (so long as they are less than 10% of total revenue which is required for enterprises). Board consists of 7 members who are not compensated but can get reimbursement for expenses.

Change Bridge Enterprise to Bridge and Tunnel Enterprise

Changes the existing Bridge Enterprise to the Bridge and Tunnel Enterprise. Expands the scope of the enterprise to include tunnel projects that are part of the state highway system.

Creates a new fee on special fuels which is to be added to the excise tax of $0.02 a gallon in 2022-23, $0.03 in 2023-24, and an increase of one cent per gallon each year until we reach $0.08 in 2028-29. Then it stays at the level until 2032-33, at which point it is tied to inflation. This is in addition to the already discussed same $0.08 road usage fee. Distributors do not have to pay the special fuel usage fee if they are exporters delivering exclusively to another state or if they already do not have to pay the excise tax thanks to other existing state law. $15.8 million raised through this fee.

As a reminder the bridge and tunnel enterprise also collect a portion of the retail delivery fee.

Transportation Planning Organizations

Allows cities and rural regions within transportation planning organizations to exercise the powers of a regional transportation authorities, which includes the power to impose charges, fees, and with voter approval, visitor benefit, sales, and use taxes to generate transportation funding. The state is prohibited from considering these authorities and any revenue they are raising when it determines the amount of state transportation funding to be allocated to the areas inside these transportation planning organizations. Doing this requires at least two public hearings prior to adopting a resolution authorizing these enhanced powers.

Adopting resolution must specify the regional transportation systems to be provided and the boundaries of the territory where the transportation planning organization can use their enhanced revenue generation power. This cannot include territory that is not in the transportation planning organization. Cities and counties can opt-into these boundaries if they are excluded.

Repeal Ballot Question on Transportation

Repeals the 2018 law that would have put a ballot measure on the 2021 ballot which would have authorized the department of transportation to issue transportation revenue anticipation notes (TRANs) for $1.3 billion with maximum repayment amount of $1.9 billion. Repeals the current plan of using lease-purchase agreements on buildings (which the 2021 ballot issue would have replaced). There was one final $500 million set of agreements set to be executed next year.

Projects to Increase Transportation Capacity Requirements

Requires the state to propose to the air quality commission procedures and guidelines that require the department of transportation and metropolitan planning organizations to take additional steps in the planning process for transportation capacity projects to account for the impacts on the amount of statewide greenhouse gas pollution and statewide vehicle miles traveled that would result from the project.

Commission to create guidelines and procedures and these must require same level of analytical scrutiny of greenhouse gas pollutants as other pollutants in the state, otherwise reduce greenhouse gas emissions, and consider role of land use to reduce vehicle miles traveled. For any regional project (based on federal definitions), the state must model air pollutant impacts for the project including actual monitoring and measurement where feasible, develop a construction plan that includes timely public alerts when pollutants exceed certain levels, and develop and implement a plan to mitigate air quality impacts on communities, including disproportionately impacted communities.

State must review, update, and improve as necessary its public engagement program for these types of projects with an eye on creating diverse and impactful ways to gather community input around the state in multiple languages and formats.

Revenue

The expectation is that this bill will increase revenue in the state by $3.8 billion over the next ten years. Some of this, the vehicle registration fees and gas tax fees for instance, is subject to TABOR, and some is not (all of the enterprise related fees). By 2023-24 (the latest year the fiscal note analyzes) the bill is expected to bring in $200 million in additional revenue.

Other

The bill also does two things to the short-term rental fee (less than 30 day rentals, fee already exists and is $2). First it indexes it to inflation (with no maximum increases like the other indexes in the bill) and second, it requires car sharing programs to collect the fee on any of their short-term rentals that are longer than 24 hours (think Zipcar or Turo). This is a daily fee and will bring in $900,000 in 2022-23 and $2.4 million in 2023-24.

Unless different methods are required by law, requires those same three agencies to use a maximum discount rate of 2.5% when calculating the social costs of greenhouse gas pollution and use the most recent federal estimate of the cost per ton.

Studies and Reports

The bill requires the state energy office, the department of public health and environment, and department of transportation to collaborate annually on a report to the legislature on progress being made toward the electric vehicle adoption goals of the state (940,000 by 2030). First report due in 2023.

Requires the public utilities commission to conduct a study to assess whether there is parity between certified taxi carriers and transportation network companies (like Uber) with respect to their contributions to the funding of the transportation system. The study must be done in 2022 so as to assess the new per ride fees on transportation network companies (which taxis do not pay). Commission must take into account any relevant differences in business models, regulatory burdens (taxis are much more regulated), and impacts on the sustainability of the transportation system. Report due during 2023 interim (between 2022 and 2023 sessions).

Requires the department of transportation to study the feasibility of implementing a road usage charge program. This involves looking at other states, identifying and assessing available technology for tracking mileage, identify barriers to implementing a road usage charge program and options for overcoming these barriers, and identify ways to coordinate with other states who have road usage charge programs to leverage their expertise. Report due during 2023 interim.

Requires the department of transportation to study issues relating to the development and adoption of autonomous motor vehicles (self-driving cars). Study must summarize the current status of technology and the extent of its use, provide an estimated timeline for future advancements and adoption, summarize the anticipated safety benefits and risks, identify any modifications or additions that existing infrastructure may need as well as the timeline and costs of such modifications, and identify and summarize any legal issues related to autonomous motor vehicles. Study due during 2025 interim.

In 2026 the state energy office, department of transportation, department of public health and environment and all of the enterprises in this bill must write a joint report on their progress for the legislature. Report must detail all projects completed and identify projects expected to be completed in next five years. It must additional recommendations for general fund money and if all of the new fees on electric vehicles need to be adjusted to maintain the goal of parity between electric vehicle owners and gas-powered vehicle owners (who pay the gas tax) when it comes to transportation funding.

Additional Information:

Retail Delivery Fee and Rideshare Fee

These fees must have a separate line item on receipts, one called Retail Delivery Fee and one called Rideshare Fee

Community Access Enterprise

State energy office may loan the enterprise money for startup costs, which must be reimbursed with interest.

The board is comprised of the director of the state energy office, the executive director of the department of public health and environment, the executive director of the department of transportation and four members appointed by the governor. For the appointed members, one must represent disproportionately impacted communities, one must represent interests of motor vehicle manufacturers or electric vehicle charging and fueling businesses or owners and operators of vehicle fleets, and one must represent a business or organization that supports electric alternatives to motor vehicles. Governor must consider geographic diversity when making appointments. All meetings are subject to state open meetings laws and all records subject to state open records laws.

Clean Fleet Enterprise

State may loan the enterprise money for startup costs, which must be reimbursed with interest.

Board of the enterprise consists of the executive director of the department of public health and environment, the director of the state’s energy office, the director of transportation, and six members appointed by the governor. For the appointed members, one representing a disproportionately impacted community, one with expertise in air pollution reduction, one with expertise in transportation, one with expertise in motor vehicle fleet electrification, one with expertise in business or supply chain management, and one representing a business that owns or operates a motor vehicle fleet. Appointments must reflect the geographic diversity of the state as much as possible. All meetings are subject to state open meetings laws and all records subject to state open records laws.

Clean Transit Enterprise

State may loan the enterprise money for startup costs, which must be reimbursed with interest.

Board is comprised of: the executive director of the department of transportation, the director of the state’s energy office, the executive director of the department of public health and environment, and six members appointed by the governor. For the appointed members, one must be a member of the transportation commission and have statewide transportation expertise, one must represent an urban area and have statewide transit expertise, one must represent a rural area and have statewide transit expertise, one must have expertise in zero-emissions transportation or motor vehicle fleets or utilities, one must represent a transportation-focused organization that serves an environmental justice community, and one must represent a public advocacy group that has transit or comprehensive transportation expertise. All meetings are subject to state open meetings laws and all records subject to state open records laws.

Non-Attainment Area Air Pollution Mitigation

State may loan the enterprise money for startup costs, which must be reimbursed with interest.

Board is composed of: the executive director of the department of transportation, the executive director of the department of public health and environment, and five members appointed by the governor. For the appointed members, one must have expertise in environmental justice or public health issues, one must be an elected official of a disproportionately impacted community that is a member of the Denver regional council of governments, one must be an elected official of a local government that is a member of the north front range metropolitan planning organization, and up to two members who are representatives of disproportionately impacted communities. All meetings are subject to state open meetings laws and all records subject to state open records laws.

Requirements for Integrated Project Delivery Contracts

Requires the department of transportation to not exclude any contractor from an integrated project delivery contract based on the contractor’s lack of experience delivering a public integrated project delivery contract in Colorado. For any contract over $75 million, the state must hold public meetings with the construction industry and general public to discuss justification for selecting the integrated project delivery method and obtain approval from the transportation commission before using this method. For all integrated project delivery contracts, the state must publish on their website justification for choosing the method (before starting the procurement process), include that same justification in any requests for proposals, publish the evaluation scores for each bid on its website, and update the ongoing status of the project until it is complete (again on its website). Integrated project delivery is where the contractor is involved at the design stage (actually at all phases of project).

Disproportionately impacted community is defined as a community where the proportion of households that are low income is greater than 40% or the proportion of households that identify as minority is greater than 40% or the proportion of households that are housing cost-burdened (pay more than 30% of income on housing) is greater than 40%.

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Arguments For:

Bottom Line:

We have a known and massive funding gap in our transportation system because we haven’t raised the gas tax in 30 years, which has resulted in one of the major sources of funding dwindling over time so that now we are $0.06 below the national average (on a $0.22 tax so that’s a lot) and only 12 states in the country have lower gas taxes
This has resulted in us simply not being able to keep up with our transportation needs. The state has $5 billion in needs over the next ten years that are not fully funded, not to mention all of the road maintenance and repair work
Solutions other than increasing ongoing funding are band-aids that will leave us in the same place in a few years. We also have to account for the increasing number of electric cars that of course don’t pay the gas tax at all
So the bill raises the gas tax through an additional fee, adds a new fee on electric vehicles, and raises the TABOR revenue cap back to its constitutionally approved level (the previous lowering was done without voter input) so we can keep the extra revenue coming in
It also pours a ton of stimulus money into transportation, so it is not accurate to say we aren’t doing that too
Allowing for regional transportation planning organizations allows for local jurisdictions to not be held up by the rest of the state if they want to increase transportation funding in their area through increased taxes
We also must address the emissions coming from transportation if we want to reach our climate goals (to avert climate catastrophe, current conditions in the state with massive wildfires and mega droughts are already bad enough, we cannot afford for it to get worse). Transportation is poised to become our largest single source of emissions soon
That means mass electrification, including of fleets of vehicles (like delivery fleets), public transportation, and personal vehicles. It means building all of the charging infrastructure we will need to make this happen. It also means increased mass transit alternatives to get fewer miles driven overall
It makes sense to fund these efforts on fees on retail delivery and transportation network services like Uber because these are the sources of some of the worst emissions. Retail delivery is exploding in use (and expected to continue to do so, pandemic or no pandemic). These are vehicles that literally drive around all day in some of the worst emitting vehicles on the road. Transportation networks result in lots of wasted miles driven

In Further Detail: At its core part of this bill is a solution for a crisis that is decades in the making. We simply do not have enough money every year to pay for our transportation needs. Everyone agrees this is true because it is blindly obvious. The core of this problem is that the major source of revenue for the state is the gas tax and the gas tax has not been raised since 1991. Think about that, in 30 years we have not touched the major way we bring in money to fund transportation projects in the state. Our tax is $0.06 below the national average (and remember: it’s only $0.22 to begin with so that’s a lot) Only 12 states in the country have lower gas taxes than we do, and we are one of the fastest growing states in the entire country. As a result, the state could spend $126 per person in 1991 on transportation. That number has cratered to $69 per person in 2015 and with nothing done, by 2040 the estimate is $41 a person. Sure the state has found some workarounds. Those toll roads everyone loves on the new highway construction? The only way the state could afford to build those projects. We’ve dithered around with bonds and lease-purchase agreements but at its core, we must find a way to simply increase the annual money that automatically goes to the state to take care of our transportation. Anything else is just another band-aid that won’t help in the long-term. Right now the state has a $5 billion 10-year project list that is only partially funded. So yes, we have some stimulus money we can spend (and we’re spending it! Where do you think the massive 2021 transfers came from?), but if we don’t change the fundamental structure, we’ll be right back in the same place in two years. So how to change that structure? Well, first and most obviously: raise the gas tax. Now, TABOR doesn’t allow us to do that without asking the voters, so that is why the bill does this via a fee instead (which are not subject to TABOR). Second, we need to account for the increase in electric vehicles that don’t use gas and of course don’t pay the tax or fee. This is actually a key goal, we want more electric vehicles, but we have to find a way to keep the revenue stream constant. Thus the new registration fees on these vehicles. Is this an ideal solution? No, something based on actual miles traveled, like the gas tax is, would be a better and more equitable way to do this but there is clear public hesitancy over such a step and as such, we should study it first more deeply (which is what the bill requires). The third fundamental structural change that is necessary involves TABOR. Quite simply, it is cutting off our nose to spite our face if we raise all of this extra revenue to pay for our desperately needed transportation issues and then turn around and give it right back. The 2017 law that this bill repeals is not a constitutional, voter-approved, change to TABOR. It actually artificially lowered the TABOR revenue cap below what voters had approved, because that was what was required to get Republicans on-board and Democrats didn’t want to play chicken with a critical hospital fee. So does this bill undo that compromise? Yes, but it wasn’t a reasonable compromise to begin with and the voters did not weigh in on it. By raising the cap back to where it should be, we can absorb this extra revenue without having to pay it right back (and note that there is another transfer built into the bill that moves at least $115 million of this excess revenue right into transportation). It’s important to also point out that we don’t have hundreds of millions of dollars lying around in the state budget waiting to be used on transportation, like Arguments Against suggests we should. We still have massive school funding issues. Do you want to cut health care for Coloradans? Cut prisons? Now you’ve run out of major budget items where you are going to find any large amounts of money. Let’s also keep this to real numbers and not hysterics. We are talking about $0.08 more per gallon of gas and nearly $100 additional registration fees per year for an electric car. Finally, regional transportation districts allow areas of the state to decide for themselves if they want to increase taxes so as to fund more transportation in their area. If, for instance, the Denver metro area wants to increase sales taxes to fund transportation projects in the Denver metro area, they should be able to do so without being vetoed by citizens who don’t live there. The bill also prevents the state from turning around and giving these areas less funding. If citizens in Denver, to use the same example, are paying more in sales tax to fund their transportation needs and then the state pulls funding so that Denver ends up about the same but some other part of the state gets more money, that is not fair to Denver and advantages the people who refused to pay out of their own pockets.

All of that is basically one half of this bill. The other half has to do with our climate goals. Transportation is poised to become the #1 source of emissions in the state soon, passing up energy generation as the emissions in that sector rapidly diminish. If we are going to reach our goals for greenhouse gas emissions in the state, we will have to dramatically reduce the emissions coming from transportation. This will only occur through wide-spread and rapid adoption of electric vehicles and more multimodal transport use. So that’s what we are doing, through all of the new enterprises created by this bill. We are putting hundreds of millions of dollars toward building every piece of this: building the charging infrastructure needed, replacing fleets of vehicles, electrifying public transportation, and yes, incentivizing people to switch to electric vehicles for their personal cars, especially older models. A 2009 study found that 10% of passenger vehicles were responsible for more than 30% of nitrogen oxide emissions and nearly 50% of hydrocarbon emissions. All of this is funded on the back of new fees on retail delivery and transportation network services. The reasons behind this are actually pretty simple. First, retail delivery is rapidly increasing and probably will not drop much when the pandemic is completely behind us. The World Economic Forum estimates that by 2030 there will be over 30% more delivery vehicles on roads to deliver 78% more packages. The motor vehicles that make these deliveries (think FedEx or Amazon) are some of the highest polluting vehicles on the road and frequently are idling in neighborhoods. Throw in all of your GrubHubs and UberEats and every other delivery service that uses regular commercial cars and you’ve got massive amounts of road usage and emissions. For the Ubers and Lyfts of the world, the Union of Concerned Scientists estimated that arrange a ride (by yourself, so no pool service) causes 69% more greenhouse gas pollution than alternative forms of transportation in part because of all the so-called deadhead miles (miles driven by the driver to get to your location and then from where they drop you off to the next location). Rather than try to stop either of these services, which have become essential, it makes more sense to use them to fund our electrification efforts (and focus hard on electrifying these services, as the bill does). And again, to be clear on this: $0.27 per delivery and $0.30 per ride in a non-electric car. Just like the gas fees, it is most likely that most people will not even notice. And why are we doing all of this, why spend so much money pushing people toward electrification? To avert climate catastrophe. We keep piling up record highs and collecting top 5 record warmest years. We have seen increased flooding in coastal areas and more dangerous storms (how many 100 year weather events can we have in the space of a few years?) More and more extreme fires hit our state seemingly every year. Droughts last longer and are more intense. Our current climate situation is bad here in Colorado, we cannot afford for it to get much worse. So drastic and immediate action is required. Not to mention, the smog that results from all of this pollution is really bad for your health. Clean air will do more than help us save the climate (and ourselves), it will also help us improve the health of all Coloradans, particularly those who live in close proximity to highways.

So yes, the bill does a lot, with a lot of different moving pieces. But at its core it is about two things: adequately funding our transportation needs into the future and reaching our emissions reductions goals to avert climate catastrophe and improve our health.

Arguments Against:

Bottom Line:

This is a clear attack on the principles of TABOR—using fees to evade the requirement that voters approve new taxes (even though these are taxes in all but name), reneging on the 2017 deal to lower the TABOR cap (the other half of the deal remains in place), and constructing multiple enterprises to evade the new requirement that enterprises which bring in more than $100 million in their first five years be approved by voters
Voters have been clear: they want this problem solved using existing revenue. They rejected a 2018 sales tax increase to fund transportation and by a pretty clear margin
The bill also removes the ability for voters to weigh in on using bonds to basically cover this same ten-year transportation funding need on this year’s ballot. We could have used that while continuing to work to find a way to use existing resources to solve our funding needs by cutting in a bunch of different other areas
And all of this new revenue (and stimulus money) isn’t even all going to our roads, a lot of it is going to multimodal mass transit projects
Much of this bill isn’t even about our existing transportation needs, instead it is about forced electrification of our transportation system by spending hundreds of millions of dollars to push people into electric vehicles and build infrastructure
All of this will come at the expense of the oil and gas industry, which is a critical state industry that employs a lot of Coloradans
All funded by increased fees on Coloradans who want something delivered to them or want to use Uber or Lyft
Regional transportation authorities have the potential to create real inequity in the state, where parts boost their own transportation funding and then are unwilling to help the rest of the state, which cannot do it on their own, boost theirs

In Further Detail: You can dress it up however you’d like but this bill is a clear attack on TABOR’s basic principles. First, reneging on the 2017 deal to raise the cap. Because this isn’t some sort of reversal, the part the Republicans gave on, moving the hospital fee out from under TABOR is still in effect. The Democrats are simply backing away from their part of the deal. Second, all of these fees, fees everywhere you look, without asking for voter approval. Is that technically legal? Sure, but the voters have been pretty clear about this. They rejected a 2018 proposal to raise the sales tax in order to fund transportation. They do not want increased taxes (or fees) to cover our transportation needs. So an additional $3.8 billion over ten years? Yeah, we need to be asking the voters not imposing all of these new fees. And then you have all of these new enterprises. You might be asking yourself, why create this many different enterprises instead of just one or two? Well the answer is evade the voters yet again, this time the ballot proposal from just last year that said any new enterprise that brought in over $100 million in its first five years needed voter approval. Cumulatively these enterprises would violate that provision; separately they do not. We were poised to ask voters to basically fill the exact same 10 year transportation hole this bill fills through bonds, which of course get repaid over time (with interest). This bill of course repeals that, but it is possible we would have found that 10 year solution right there. Then we could have continued to work on our overall budget to find the $20 million here and $50 million there that we really don’t need to be spending at the state level. Will that be easy? No, in an ideal word we’d spend unlimited money on everything but that isn’t the world that exists and tough choices have to be made. On the stimulus money, let’s also be clear that vast amounts of this are going to multimodal transport and not simply to the state highway users fund.

That brings us to the fact, and it is a fact, that about half of this bill has nothing at all to do with funding our current transportation needs and is instead about forcing the state into electrifying transportation. This isn’t so much putting a thumb on the scale as it is stomping on the scale and breaking it. The oil and gas industry is a critical industry in this state. We are 7th in oil production in the US. Tens of thousands of people are employed by the industry and hundreds of thousands of jobs depend on it. The clear goal of this bill is to in effect destroy this industry in order to raise up clean energy. Hundreds of millions of dollars spent on pushing electrification instead of our roads, bridges, and tunnels. Hundreds of millions of dollars pushed into multimodal transportation that may not even by wanted (how many times do we have to see actual demand fall short of projected demand for these projects before we learn our lesson?) All of this funded through increased fees on all Coloradans who want to get something delivered to them or who want to use Uber or similar such services. Note by the way that taxis don’t pay this fee, which is not fair. To be clear, no company is going to pay these fees. They are passed on to the end user, like sales tax, and all Coloradans will pay.

As for regional transportation authorities, some things just need statewide solutions and our transportation network is one of them. If parts of the state boost their transportation revenue, then those parts are less likely to support statewide initiatives to do the same. That could leave parts of the state out entirely, where the infrastructure there deteriorates while other parts thrive. Future efforts to boost revenue could be torpedoed by the regions of the state who have already boosted their own revenues. Smaller and less prosperous parts could be left in a no-win situation where they cannot raise enough funds on their own to address transportation and cannot convince the rest of the state to help them. The structure of the bill leaves the department of transportation unable to siphon off at least some funds from the thriving areas to help other parts of the state. We all have to be in this together.

Bottom Line:

These sorts of fees are highly regressive, in that they hit poor people the hardest. Arguments For is probably right that many Coloradans won’t even notice the increases but poor Coloradans probably will. Our tax system is already regressive, we need to instead be focusing on unlocking the ability for the rich to pay their fair share which includes closing tax loopholes, removing deductions, and looking to end the TABOR enforced system of no progressive income taxes

SB21-265 Transfer From General Fund To State Highway Fund (Zenzinger (D), Rankin (R)) [McCluskie (D)]

PASSED

Appropriation: $124 million
Fiscal Impact: None beyond appropriation

Goal:

Transfer $124 million from the general fund to the state highway fund.

Description:

Transfers $124 million from the general fund to the state highway fund.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

This is a lot of money but the background is fairly simple. Last year the state suspended $100 million in transfers it was supposed to make to the state highway fund in 2020-21 and 2021-22 and required the department of transportation to make some debt service payments itself in those two years. As a result the department made $62 million in debt payments both years. This simply refunds that money

Arguments Against:

Bottom Line:

SB260 already transfers far more than this, some of which could be used for these same debt payments. Plenty of the state stimulus bills’ Arguments Against sections make the case that there isn’t enough money being spent. Our state water plan, behavioral health care, tutoring support for students, there’s a lot where we could have spent more but didn’t

SB21-271 Misdemeanor Reform (Gonzales (D), Gardner (R)) [Roberts (D)]

PASSED

AMENDED: Minor

Appropriation: $95,340
Fiscal Impact: $250,000 this year, $535,000 next year. Slight negative impact to state revenue into future. Somewhat unknown on overall scale but likely net positive due to reduction in prison times at local level.

Goal:

Overhauls the entire state misdemeanor crime and penalty definitions by reducing from 3 misdemeanors and 2 petty offenses to 2 misdemeanors, 1 petty offense, and a new classification of civil infraction. Punishments for each category are reduced across the board. Numerous crimes are reclassified in this structure (generally downward) and several crimes removed entirely (generally because the crime fits into a larger overall category, like theft, and doesn’t need special treatment). Good behavior sentence reduction amounts are also reduced slightly, with less ability to add on by local sheriffs.

Description:

Overhauls the entire state misdemeanor crime and penalty definitions. Right now there are three classifications of misdemeanors and two classifications for petty offenses. The bill changes that to two and one, and adds a new classification of civil infraction. Numerous crimes are reclassified within this structure, see Additional Information for more detail. In general most unlawful disclosure of information misdemeanors are downgraded from class 1 to class 2 as are many provisions dealing with operating without a proper license. Most driving related misdemeanors are reclassified as traffic violations. Most of the crimes dealing with something valuable (like theft) are reclassified in a sliding scale from petty offense to level 2 felony, with less than $300 being a petty offense, $300-$1,000 a class 2 misdemeanor, $1,000 to $2,000 a class 1 misdemeanor, $2,000 to $5,000 a class 6 felony, $5,000 to $20,000 a class 5 felony, $20,000-$100,000 a class 4 felony, $100,000 to $1 million a class 3 felony, and over $1 million a class 2 felony.

Several crimes are also removed entirely, in general this is because the crime can fit into a larger overall category and doesn’t need special treatment (an example is theft of motor vehicle parts, which would be treated just as theft by the bill).

For penalties, right now a class 1 misdemeanor is punishable by 6 to 18 months in jail and a potential fine of $500 to $5,000. The bill changes this to a maximum of 364 days in jail (going under one year exactly avoids some immigration issues) and a potential fine of up to $1,000. Right now a Class 2 misdemeanor is punishable by 3 months to 364 days in jail and a potential fine of $250-$1,000. The bill changes this to a maximum of 120 days in jail (6 months) and a potential fine of up to $750. Class 3 misdemeanors, which the bill eliminates, are currently punishable by up to 6 months in prison and a potential fine of up to $750. So essentially when it comes to punishment, Class 1 is the old class 2 and class 2 is the old class 3. Class 1 petty offenses are currently punishable by up to 6 months in jail and a potential fine of up to $500. Class 2 petty offenses have varying penalties that depend on the actual crime. In the bill, a petty offense is punishable by up to 10 days in jail and a potential fine of up to $300. The new civil infraction is punishable only by a fine, of up to $100.

For civil infractions, arresting officers must give the penalty notice and release the individual. No taking to jail or court. Hearings will be held in county courts.

Amount of time someone can be held if they are deemed incompetent to proceed lowered from 50% of the maximum prison term for their most serious offense to 30%.

Good behavior sentence reduction times also overhauled. It was 1 day for each 15 on the sentence, bill changes it to 7 days for each 30, calculated on a pro-rated basis all of which is subject to forfeiture if the inmate violates rules and regulations of jail. In addition, a 3 day deduction for every 30 days can be earned if the county sheriff designates them as a trusty prisoner (used to be 13 for every 30) and is engaged in work (either in our outside of the prison) so long as the work is performed in a credible manner and the individual conducts themselves appropriately (again was 13 for every 30 as a separate possible deduction). Also a maximum of three additional days per extraordinary action taken, as defined by the local sheriff.

Adds working to provide child or family care services that are reasonable to support the immediate needs of the family as a condition for leaving the county jail during working hours, as well as behavioral health treatment and a reentry program.

Additional Information:

Crime removed: defrauding an innkeeper, failure of witness to appear, defacing a cave, knowingly marrying a bigamist, refusing to aid a police officer to make an arrest, inducing a prisoner to absent themselves from work, aiding escape for someone who is under legal custody for a civil process, refusal to yield party telephone line (ask your grandparents), requirement for warnings in telephone directories, bestowing a degree without authorization of organization or school by state, theft or violation of library property, introducing liquor to the polls, destruction of property or hinderance of officers or wrongful entrance to fairgrounds, tampering with motor vehicle equipment without knowledge of owner, and theft of motor vehicle parts

Upgrades statutory sexual assault from a class 1 misdemeanor to a class 6 felony.

Tampering with statewide voter registration system, unlawfully refusing a ballot, violating law not to handle electronic or electromagnetic voting equipment or devices, voter intimidation, destroying or removing or delaying delivery of election records, and giving or promising money in exchange for votes are moved up in classification to a class 1 misdemeanor.

Second or subsequent pyramid scheme conviction penalties removed (was class 6 felony). Now same class 1 misdemeanor applies for all convictions.

Knowingly falsifies a repossessor bond application or misrepresents one dropped down from a class 1 to a class 2 misdemeanor

Interference with rules of the legislature, refusal to produce books or fail to attend appeals of administrative decision are dropped down to a petty offense.

Wage theft is changed from an unclassified misdemeanor to a scale depending on size of theft. Less than $300 is petty offense, $300-$1,000 is class 2 misdemeanor, $1,000 to $2,000 is class 1 misdemeanor, $2,000 to $5,000 is class 6 felony, $5,000 to $20,000 is class 5 felony, $20,000-$100,000 is class 4 felony, $100,000 to $1 million is a class 3 felony, and over $1 million is a class 2 felony.

Deliberate violations of unemployment rates when taking over a company (you have to assume their rates), downgraded from class 1 to class 2 misdemeanor.

Malicious removal of markings to locate underground facilities downgraded from class 2 misdemeanor to petty offense. Violating laws around boiler placement and operation downgraded from in essence a class 2 misdemeanor to a petty offense.

Defamation of one insurance company by another downgraded from in essence a class 2 misdemeanor to a petty offense. Operating insurance without authorization from state downgraded from class 1 to class 2 misdemeanor. Non-compliance by insurance company officers with orders of the state downgraded from in essence class 1 misdemeanor to class 2 misdemeanor.

Disclosing HIV test results downgraded from in essence class 1 misdemeanor to class 2 misdemeanor. Intentionally releasing results of genetic testing without written permission downgraded from class 1 to class 2 misdemeanor. Releasing public health records and releasing immunization records downgraded from class 1 to class 2 misdemeanor.

Performing duties or exercising power of a credit union after receipt of suspension or removal order, or same thing with savings and loan association, downgraded from a class 1 misdemeanor to class 2 misdemeanor. 2^nd and subsequent violations of laws around money transmitter agents downgraded to same penalty as first violation (class 2 misdemeanor). Violating real estate appraisal laws downgraded from a class 1 to a class 2 misdemeanor. Operating without a mortgage originator license downgraded from a class 1 to a class 2 misdemeanor. Abuse of property insurance (insurers or their agents accepting anything of value from people doing repairs on a claim) downgraded from class 2 misdemeanor to petty offense. Violating rules around loan-finding (offering to serve as lender or agent to find a lender) downgraded from class 1 misdemeanor to petty offense. False statements to influence fire suppression system installation downgraded from class 1 to class 2 misdemeanor.

2^nd and subsequent violations of operating without a license for professions that require one downgraded to same penalty as first violation (class 2 misdemeanor). Was a class 6 felony for most. Various other professions were a class 1 misdemeanor.

Violating law against in essence unsanctioned boxing or MMA fighting in Colorado downgraded from class 1 to class 2 misdemeanor. State employee divulging confidential information in environmental audit report downgraded from class 1 to class 2 misdemeanor.

Purposely destroying someone else’s advanced medical directive without their consent or withholding an advanced medical directive or falsifying or concealing organ donor documents downgraded from a class 1 to a class 2 misdemeanor.

Menacing without a weapon is upgraded from a class 3 to a class 1 misdemeanor.

Second degree arson is given a sliding scale of punishments (currently a class 4 felony is damage is more than $100 and class 2 misdemeanor if not): petty offense if damage is less than $300, class 2 misdemeanor if damage is $300-$1,000, class 1 misdemeanor if damage is $1,000 to $2,000, class 6 felony if damage is $2,000 to $5,000, class 5 felony if damage is $5,000 to $20,000, class 4 felony if damage is $20,000 to $100,000, class 3 felony if damage is $100,000 to $1 million, and a class 2 felony if damage is greater than $1 million.

Fourth degree arson given similar treatment (class 2 for property endangerment of more than $100, class 3 if less currently). Petty offense if property danger is less than $300, class 2 misdemeanor if property danger is $300-$1,000, class 1 misdemeanor if property danger is $1,000 to $2,000, class 6 felony if property danger is $2,000 to $5,000, class 5 felony if property danger is $5,000 to $20,000, class 4 felony if property danger is $20,000 to $100,000, class 3 felony if property danger is $100,000 to $1 million, and a class 2 felony if property danger is greater than $1 million.

Adds potential for second degree burglary to become a class 2 misdemeanor (generally a class 4 felony) if the person knowingly violated a written notice by a retailer or a court order restraining them from entering a retail location during public hours. Third degree burglary is downgraded from a class 5 felony to a class 2 misdemeanor with the enhancement of controlled substances stolen downgraded from class 4 felony to class 1 misdemeanor. Mere possession of burglary tools is downgraded from a class 5 felony to a class 2 misdemeanor but if the tools were knowingly possessed to facilitate forceful entry crime remains a class 5 felony.

Specific extra crime of procuring food or accommodations without paying is folded into general theft. Theft thresholds are changed to: petty offense for less than $300 (lowest level used to be $50), class 2 misdemeanor for $300-$1,000 (upper limit here used to be $300), and class 1 misdemeanor for $1,000 to $2,000 (same upper limit here). Felony amounts are not touched.

Theft of trade secrets is downgraded from class 1 to class 2 misdemeanor. Aggravated motor vehicle theft threshold between class 6 felony and class 1 misdemeanor changed from $1,000 to $2,000. Theft detection device sale downgraded from class 1 to class 2 misdemeanor.

Criminal mischief thresholds changed. Class 2 misdemeanor now less than $1,000 in damage (still more than $300), class 1 now $1,000 to $2,000 and class 6 felony now $2,000 to $5,000. Downgrades first degree criminal trespass from a class 5 felony to a class 1 misdemeanor, unless the dwelling is occupied in which case it is a class 6 felony.

First degree criminal tampering downgraded from class 1 to class 2 misdemeanor as is defacing or destroying written property right documentation.

Criminal operation of a recording device in a movie theater downgraded from a class 1 misdemeanor to a civil infraction as is dealing in unlawful recording of a live performance and dealing in unlawfully packaged recorded articles. Trafficking in unlawfully recorded live performances downgraded from class 1 to class 2 misdemeanor.

Theft of cable services downgraded from class 2 misdemeanor to petty offense.

2^nd degree forgery and forgery of academic record downgraded from class 1 to class 2 misdemeanor. Criminal possession of a 2^nd degree forged instrument downgraded from class 2 misdemeanor to petty offense. Faking rareness of an object to defraud someone downgraded from class 1 to class 2 misdemeanor.

Trademark counterfeiting altered. Now a petty offense if value of goods bearing counterfeit less than $300, class 2 misdemeanor if $300-$1,000, class 1 if $1,000 to $2,000, class 6 felony if value is $2,000 to $5,000, class 5 felony if value is $5,000 to $20,000, class 4 felony if value is $20,000 to $100,000, class 3 felony if value is $100,000 to $1 million, and a class 2 felony if value is greater than $1 million.

Adds some layers to criminal impersonation. Currently a class 6 felony no matter what. Now only a class 6 felony if impersonation opens the impersonated individual to civil or criminal liability. Class 1 misdemeanor if the activity only might subject to them civil or criminal liability, and class 2 misdemeanor otherwise.

New lower level of identity theft added as a class 2 misdemeanor (all is currently class 4 felony), except it is a class 6 if person possess three or more financial devices or identifying information of three or more people. Higher levels left at class 4. Criminal possession of a financial device and one or more identifying documents (of someone else) downgraded from class 1 to class 2 misdemeanor. Pretending to be a member of the state patrol downgraded from class 1 to class 2 misdemeanor.

Second degree offering false documentation for recording (official public documents) downgraded from class 1 to class 2 misdemeanor.

Check fraud and defrauding a creditor or debtor changed to match the same value framework as seen elsewhere in the bill. Petty offense if less than $300, class 2 misdemeanor if $300-$1,000, class 1 if $1,000 to $2,000, class 6 felony if value is $2,000 to $5,000, class 5 felony if value is $5,000 to $20,000, class 4 felony if value is $20,000 to $100,000, class 3 felony if value is $100,000 to $1 million, and a class 2 felony if value is greater than $1 million.

Issuing false financial statements downgraded from class 1 to class 2 misdemeanor as is the lowest level of insurance fraud.

Knowingly not paying debts on a construction lien downgraded from class 1 to class 2 misdemeanor.

Second or subsequent mail fraud class 1 misdemeanor penalty removed. Now class 2 regardless.

Debt collector refusing to pay assigned debts to original creditor and concealment of property to avoid it being encumbered as is refusal to pay over proceeds of a security interest changed to match the same value framework as seen elsewhere in the bill. Petty offense if less than $300, class 2 misdemeanor if $300-$1,000, class 1 if $1,000 to $2,000, class 6 felony if value is $2,000 to $5,000, class 5 felony if value is $5,000 to $20,000, class 4 felony if value is $20,000 to $100,000, class 3 felony if value is $100,000 to $1 million, and a class 2 felony if value is greater than $1 million.

Knowingly creating duplicate receipts in warehouses downgraded from a class 6 felony to a class 2 misdemeanor.

Misdemeanor unauthorized use of a financial device thresholds altered to match same framework in bill: Petty offense if less than $300, class 2 misdemeanor if $300-$1,000, class 1 if $1,000 to $2,000. Felonies not touched.

Equity skimming of financial vehicles altered to match same framework. Petty offense if less than $300, class 2 misdemeanor if $300-$1,000, class 1 if $1,000 to $2,000, class 6 felony if value is $2,000 to $5,000, class 5 felony if value is $5,000 to $20,000, class 4 felony if value is $20,000 to $100,000,

House

Senate

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