Legislation in Review 2017

Watching the legislature in 2017 was like watching a dog stuck on an icy pond. Its legs splay out in every direction. It falls down again and again. It barks. It growls. It sits still for a long time, unsure what to do. And then, just when you think the dog will never make it off the ice, it somehow slides across to the bank and bounds up onto dry ground.

Several times, Colorado’s 2017 legislative session threatened to fall apart. Democrats and Republicans flopped and flailed, pointing fingers at each other about why they had made no measurable progress in tackling the state’s biggest problems.

But it didn’t end that way.

In fact, observers are hailing the session as one of the most productive in years, with bargains struck on longstanding debates such as the Hospital Provider Fee and construction defects liability.

The Colorado Health Institute has identified five themes to this action-packed session:

1. Big Deals Finally Succeed: A last-minute accord on the Hospital Provider Fee proved to be the signature achievement of the 2017 session.
2. Still No Answer on Health Costs: Attempts by Western Slope lawmakers to address high insurance costs once again came to naught.
3. Insurers Face Greater Scrutiny: Insurance companies saw an onslaught of bills questioning their business practices.
4. Encouraging Year for Behavioral Health: The opioid epidemic was on legislators’ minds when they directed attention and funding to mental health and substance use programs.
5. Public Health Finds a Majority: Immunization programs and health surveys survived conservative attempts to cut their funding.

The session did have the usual share of culture war bills — measures intended to make a statement even though the sponsors know they will never pass in a divided legislature. Bans on abortion and conversion therapy for gays and lesbians fit into this category. But these bills captured less attention at the Capitol. (They might have more energy behind them in 2018, an election year.)

At the session’s conclusion, everyone from legislators to industry groups was left lauding some successes and lamenting some failures. This give and take was expected in another year of split-party control.

Colorado's Power Players

Power dynamics changed quickly in the 2017 session, with new players making a splash and veteran legislators and lobby groups flexing their political muscles.

Lt. Governor Donna Lynne

In her first year in office, Lynne brought the governor’s office into health policy to a degree not seen in years. She helped coordinate legislation to increase hospital transparency, boost competition in rural insurance markets and extend subsidies for customers with costly health insurance (see pages 12-13). All the bills had bipartisan sponsors and succeeded in passing the House, but none made it out of their first Senate committee. The lieutenant governor made an impact and grew her own profile, but left empty-handed.

Hospitals

Led by the Colorado Hospital Association, hospitals averted a massive funding cut thanks to Senate Bill 267, which continues Hospital Provider Fee funding and includes a long list of other changes to state budgeting (see pages 10-11). They also secured the defeat of House Bill 1236, an attempt by the governor’s office to open hospitals' finances to greater public scrutiny. And they saw one bill to crack down on freestanding emergency rooms die early in the session, while a rumored second bill was never introduced.

Republican Dealmakers

When former Sen. Ellen Roberts retired last year, we wondered who would play the role of moderate in a solidly conservative caucus. Turns out plenty of Republicans stepped up. Sen. Don Coram, Sen. Larry Crowder, Sen. Beth Martinez Humenik, Rep. Phil Covarrubias, Rep. Bob Rankin and Rep. Marc Catlin are a few, but certainly not all.

Legislative Leadership

Those Senate moderates were emboldened by a change in Senate leadership. New Senate President Kevin Grantham, a Republican, proved willing to allow his members to seek bipartisan deals, especially on the Hospital Provider Fee, and he attempted to broker deals himself on highway funding and construction defects. Grantham paired with the Democratic Speaker of the House, Crisanta Duran, on the highway funding bill, which Senate Republicans killed despite their leader’s backing. Grantham and Duran let their top lieutenants carry SB 267, the session’s marquee measure.

2017 Legislation: By the Numbers

In its third consecutive year of split partisan control, the legislature slightly increased its bill passage rate. Split control has meant bad news for many measures, with roughly half of bills dying the past two years. This year, though, about six in 10 passed, possibly reflecting the influence of new chamber leaders and a freshman class of legislators who proved willing to reach across the aisle.

There was a lot to watch related to health and health care. In total, CHI tracked 95 bills: 47 in the House, 47 in the Senate and one Senate resolution. Health bills had roughly the same success rate as all measures introduced during the session.

Health bills assigned to a health committee stood a very good chance of advancing:

49 Bills considered by House Health, Insurance and Environment Committee (88 percent of those bills passed)

41 Bills considered by House Public Health Care and Human Services Committee (98 percent of those bills passed)

46 Bills considered by Senate Health and Human Services Committee (98 percent of those bills passed)

Wonder where doomed bills went to die? A whopping 101 bills expired in the House or Senate State, Veterans and Military Affairs committees – known as the legislature’s “kill committees.” This included 17 percent of all health bills tracked by CHI. The Senate State Affairs Committee was especially effective at dispatching bills, killing 66 throughout the session — almost twice as many as all other Senate committees combined.

Theme 1: Big Deals Finally Succeed

For years at the legislature, the hunt for the Big Deal turned into a story about The One That Got Away. Bipartisan optimism about cooperation on funding for schools, roads, broadband, construction liability and other items always seemed to fizzle as the session wore on. This year looked like it would be the same old story — until the last month of the session changed everything.

Spotlight: Senate Bill 267 (Passed)

Big Deal No. 1: Hospitals have been unwilling stars in the fight over Colorado’s tight state budget the past three years, thanks to the Hospital Provider Fee. The program provides crucial funding for many hospitals, but its massive size pushed the state over the Taxpayer’s Bill of Rights (TABOR) revenue limit, which leads to taxpayer refunds. Senate Republicans had refused to pull the fee out of the state budget and reclassify it to avoid bumping into TABOR. They said such a move would be an assault on fiscal responsibility. 

Gov. John Hickenlooper’s solution to keep spending under the revenue cap was to cut the Provider Fee by $73 million last year and $264 million this year. Hospitals made the case that cuts on that scale could force several rural hospitals to shut down. They won the ear of Sen. Jerry Sonnenberg, a Republican from Sterling, who agreed to sponsor a bipartisan bill to remove the Provider Fee from TABOR’s grasp in return for a long list of Republican budget priorities. Both sides found a lot to dislike in the bill, and it looked to be dead with just a week left in the session. 

But after negotiations and rewrites, the bill passed with sizable majorities in both chambers. Democrats and hospitals chalked up a win by reclassifying the Provider Fee, which will eliminate TABOR refunds in the near-term and remove hospitals from the center of the debate over the state budget.

And Republicans won a number of concessions, including: 1) lowering the TABOR cap by $200 million; 2) requiring all state agencies except Education and Transportation to propose a two-percent-lower budget; 3) floating a $1.8 billion bond for transportation projects, with 25 percent of funds dedicated to rural counties; 4) allocating more money for rural and small schools; 5) providing $120 million for capital construction; 6) creating a business personal property tax credit valued at $21 million annually; and 7) increasing copayments for certain Medicaid services. The bill also increases the retail marijuana sales tax rate to 15 percent to fund aspects of the bill.

House Bill 1279 (Passed)

Big Deal No. 2: Legislators finally found common ground in the long-running debate over lawsuits about construction defects. This bill requires a majority of condo owners in a complex to vote on whether to sue developers for shoddy workmanship rather than letting the homeowners’ association decide. It also requires homeowners’ associations to hold a meeting where the developer can make an offer to remedy defects. After years of failure on the issue, HB 1279 passed the House unanimously and picked up all but two votes in the Senate.

House Bill 1242 (Failed)

The One That Got Away: This bill would have referred a measure to the November 2017 ballot asking Colorado voters to raise the state sales tax by 0.62 percent. If approved, the increase would have generated roughly $695 million annually to implement a comprehensive, statewide transportation plan. This bill failed despite its Big Deal presentation by Senate President Grantham and Speaker of the House Duran. But the two other Big Deals described above made it to the governor's desk.

Theme 2: Still No Answer on Health Costs

Soaring health insurance prices in rural Colorado have commanded the attention of legislators for a few years now, but again this year, the session ended with no legislative answer for constituents who are paying the price for expensive coverage.

Between the 2016 and 2017 legislative sessions, Lt. Gov. Lynne led a workgroup to discuss the high cost of health care and the potential for addressing it through legislation.

The discussions led to a set of cost-focused bills with bipartisan sponsors and backed by Lynne, even though the Hickenlooper administration avoided characterizing them as a unified health agenda. During hearings for the bills, Western Slope residents and county commissioners talked about the hardships of living with some of the country’s highest health insurance rates.

But groups representing hospitals, pharmaceuticals and insurance carriers opposed the bills. Republicans on the Senate State Affairs Committee said each bill would create burdensome work for companies and state agencies, more dependency on government, or both. All five bills died in that committee on a 3-2 party-line vote.

One bright spot for those concerned with costs: SB 300 directs the Division of Insurance to study creating a high-risk pool, a reinsurance program or other ways to bring down health insurance costs for sick people who need it most. High-risk pools are generally favored by Republicans and reinsurance by Democrats, leading to bipartisan support for the bill. The insurance commissioner will share findings with legislators by October 1, 2017, and the state could then choose to seek a federal waiver for its preferred system of cost containment.

House Bill 1237 (Failed)

Would have authorized local governments to provide insurance to their employees through plans currently reserved for state employees. Sponsors believed this would allow local government workers to access more affordable coverage.

House Bill 1286 (Failed)

Would have required health insurance carriers that provide group benefit plans to state employees to participate in the Colorado health insurance exchange. Insurers also would provide plans in two counties in a geographic rating area with the highest premiums and participate in Medicaid, the Child Health Plan Plus (CHP+) and certain grant programs.

Spotlight: House Bill 1235 (Failed)

This bill would have created subsidies for people in high-cost areas who spend more than 15 percent of household income on health insurance premiums. The subsidies were meant for people with income between 400 percent and 500 percent of the federal poverty line, which is too much to qualify for federal subsidies through the state health insurance exchange. The bill was amended to reduce its projected $13.2 million cost to $5.7 million, but that didn’t convince the Senate State Affairs Committee. Legislative analysts estimated the bill could provide 2,000 people subsidies of $2,500 to $3,500 a year — a drop in the bucket compared with the $308 million in federal insurance subsidies given to Coloradans last year.

Transparency Bills from the Governor’s Office

Ask any legislator if they support more transparency, and they’ll probably say yes. But in practice, it’s much harder to gain agreement on greater transparency around costs and spending in health care. Among other bills this session, two proposals backed by Lynne would have required more data and reporting, specifically from hospitals and pharmaceutical companies. Industry opposition remains a powerful deterrent.

House Bill 1236 (Failed)

Would have required the Department of Health Care Policy and Financing (HCPF) to prepare an annual report detailing uncompensated hospital costs and different categories of hospital expenditures.

House Bill 1318 (Failed)

Would have required insurance carriers to report pharmaceutical cost data annually to the Division of Insurance (DOI). Data would have included total drug costs (including the amount paid by patients), net drug costs as both a dollar amount and a percentage of total medical costs, and information on the 10 most-dispensed and highest-cost drugs. The DOI would have analyzed the data and reported back to legislators.

Theme 3: Insurers Face Greater Scrutiny

Coloradans are angry about health care costs, and it’s easy to see why. The costs
of care and insurance have steadily climbed
and everyone – especially residents of the Western Slope and Eastern Plains — wants someone to blame.

This year at the legislature, insurance companies faced a sustained assault. While they’re certainly not the only players when it comes to rising costs, they are an easy target.

But insurers dodged other rules and regulations. HB 1286, the lieutenant governor’s high-priority bill to increase competition, died (see page 12). And a dormant discussion was raised about billing for out-of-network providers who treat covered people at in-network facilities, which
can result in surprise bills for consumers. But
SB 206, an attempt to regulate payment in these scenarios, never got off the ground — dying in its first committee at the request of its sponsor after discussions between doctors and insurers stalled.

Senate Bill 88 (Passed)

Requires insurers to define criteria for including health care providers in their networks and to hear appeals from providers who are removed. The bill states that a carrier cannot discriminate against high-risk populations or exclude providers that treat these people, who may need costly care. Carriers must now put in writing their reasons for excluding a doctor from their network.

Senate Bill 198 (Passed)

Expands the public notice when a company seeks to buy a Colorado-based health insurance company. Public notice and a hearing for such acquisitions were already required, but the bill mandates the insurance commissioner to provide additional information if there is evidence of a violation of legal competitive standards.

Senate Bill 151 (Failed)

Would have put new requirements on insurance carriers and intermediaries to increase consumer access to care. For example, the bill would have prohibited insurers from requiring a “medical necessity” determination before a doctor could perform an initial examination of a patient. SB 151 died early in the session after insurance carriers complained about the potential regulatory burden.

Senate Bill 190 (Passed)

Prevents dental insurers from setting standard fees for services they do not cover. The bill authorizes dentists, with patient agreement, to determine the charge for noncovered items or services, as long as the amount is not more than what is usually charged for the services in question.

House Bill 1247 (Failed)

Would have prohibited a health insurance plan from limiting a covered person’s ability to select a provider of their choice as long as certain criteria were met. It also would have prohibited carriers from imposing any form of cost-sharing on customers because of their choice of provider.

House Bill 1173 (Passed)

Requires contracts to explicitly prohibit an insurance carrier from retaliating in any way against a health provider who disagrees with a carrier's decision. Prior law required the contract to state only that the carrier could not terminate the deal because of a dispute with a provider. In the past, disputes over payments or services have often led insurers to punish providers by sending them fewer patients or paying them less for their services.

Theme 4: Encouraging Year for Behavioral Health

This was another big year for behavioral health. A number of successful bills focused on mental health in the criminal justice system (SB 19, SB 21) and training for law enforcement (HB 1215). There was bipartisan support for additional resources for substance use treatment with the passage of bills to fund a research center (SB 193) and to direct HCPF to study adding inpatient substance use treatment as a Medicaid benefit (HB 1351). Other bills updated terminology to reflect advances in behavioral health (SB 242, SB 246).

Work will continue over the summer and fall, as legislators approved a request for an interim study committee on opioid and other substance use disorders in Colorado. The issue had several champions in the legislature this year, including Democratic Sen. Cheri Jahn and Democratic Rep. Brittany Pettersen, who has been open about her mother’s decades of struggle with opioid addiction. Pettersen has announced a run for Congress, pledging to stay focused on the issue if she goes to Washington.

Spotlight: Senate Bill 207 (Passed)

The most notable behavioral health bill of the session ends the practice of jailing people during a mental health crisis. The bill adds $7 million for crisis service facilities (walk-in centers, acute treatment units and crisis stabilization units) to care for people in need. SB 207 was a response to the governor’s veto of a 2016 bill (SB 16-169) that would have changed the 72-hour mental health hold procedure, but still included jails on the list of approved facilities.

House Bill 1350 (Failed)

Would have allowed pharmacists to partially fill a Schedule II opioid prescription (for example, providing a seven-day supply instead of 30 days) if authorized by the prescribing physician or patient. This bill was backed by Lt. Gov. Lynne, but her support wasn’t enough to overcome disagreements between doctors and pharmacists. The topic will likely be discussed in the interim legislative study committee focused on substance use.

Senate Bill 74 (Passed)

Expands medication-assisted treatment by training more providers in Pueblo and Routt counties, two areas hit especially hard by the opioid crisis. The program will be administered by the University of Colorado College of Nursing and is funded through the Marijuana Tax Cash Fund. Support for this bill shows that Colorado is open to diverse solutions to addressing opioid use disorders.

Senate Bill 193 (Passed)

Allocates $1 million to establish the Center for Research into
Substance Use Disorder Prevention, Treatment, and Recovery
Support Strategies at the University of Colorado Health
Sciences Center.

Senate Bill 82 (Failed)

Would have required additional standards for methadone treatment facilities, including minimum distances from schools, colleges, residential child care facilities and public parks, and a disclosure of infractions by the owner of the facility. The bill was designed to limit these clinics, and its demise was a victory for substance use treatment advocates.

House Bill 1351 (Passed)

Requires HCPF and the Department of Human Services to study options for funding residential and inpatient substance use disorder treatment for Medicaid enrollees. Currently, they are not covered by the program. 

Theme 5: Public Health Finds a Majority

The public health community faced efforts to roll back or defund various programs this session. This was not unusual. But public health was largely successful in defending against these challenges in 2017, and it emerged with several victories after winning majority support.

High-profile bills aimed at reducing immunizations, school data collection and abortion failed.

Senate Bill 250 (Failed)

Would have allowed exemption letters waiving a school immunization requirement to be written by a parent, guardian, emancipated student or student 18 years of age or older. Current law says they must come from a physician, physician’s assistant or advanced practice nurse. SB 250 passed its Senate committee but then failed on the floor on second reading, which rarely happens.

House Bill 1146 (Failed)

Would have allowed school employees to dispense over-the-counter medication to students with parental/guardian permission. However, it also would have allowed a parent or guardian to opt out of the education system’s collection and storage of any data related to his or her child. The bill was defeated in a House health committee.

Senate Bill 284 (Failed)

Would have required women seeking an abortion to first have an ultrasound, and providers to give detailed information on abortions to women at least 24 hours in advance. Those not complying with the requirements would have been subject to criminal penalties. The bill, titled “A Woman's Right to Accurate Health Care Information,” had also been attempted in 2016. Like SB 250, SB 284 failed on the Senate floor on second reading.

Abortion Bills (Failed)

And three anti-abortion bills were killed in a House health committee after an emotional hearing. HB 1085 would have put new regulations on abortion clinics, such as requiring a detailed annual registration form filed with the attorney general; HB 1086 would have required providers to share information about “abortion pill reversal” medication with women seeking a chemical abortion; and HB 1108 would have made providing an abortion in most cases a Class 1 felony, punishable by life imprisonment or the death penalty.

Public Health Budgets

Notable public health-related programs survived a scare during the budget debate. Some items made it safely into the first version of the budget, including $5 million for school-based health centers, funding for the Colorado Immunization Information System and $2.5 million for the state’s successful long-acting reversible contraceptives (LARC) program, which was the source of heated debate in prior sessions. A community provider rate increase of 1.4 percent will benefit Local Public Health Agencies (LPHAs), which will gain $100,000 statewide.

Other initiatives did not have funding in the budget bill after the Joint Budget Committee deadlocked 3-3 on whether to include them. (A tie vote means an item fails.) But all had their funding restored through amendments in both the House and Senate. Among them:

• The Healthy Kids Colorado Survey, which has asked middle and high school students about a variety of risk behaviors since 1991. (Amount requested: $745,000)
• A reporting system for medical aid in dying in Colorado, which must happen in order for the practice — approved overwhelmingly by voters as Proposition 106 in 2016 — to be tracked. (Amount requested: $44,000)

Grab Bag: Other Notable Health Bills

Senate Joint Resolution 34 (Failed)

Would have expressed the legislature’s support for the ACA and additional efforts to strengthen access to care, as well as its opposition to efforts to repeal or weaken the law, especially without a viable replacement. The bill’s assignment to the Senate Agriculture Committee was a clear sign of Senate leadership’s disapproval.

House Bill 1094 (Passed)

Modifies existing requirements for health benefit plans to cover services delivered via telehealth. For example, insurance plans can’t restrict reimbursement based on the type of technology used to deliver telehealth care. But the service must include an audio-visual component, so care delivered via text message, for instance, won’t be covered.

House Bill 1115 (Passed)

Establishes rules for direct primary care, an increasingly popular setup in Colorado in which patients pay a retainer to doctors for their primary care services and bypass insurance companies. The bill makes clear that such agreements are not subject to state regulation because they replace insurance with a doctor/consumer contract.

Spotlight: House Bill 1121 (Failed)

The “Patient Safety Act” would have expanded fingerprint-based criminal background checks to a broad set of health care providers, such as dentists, podiatrists, veterinarians and certified nurse aides. The bill came on the heels of a successful 2016 measure that instituted background checks for surgical technicians. But medical professionals and industry groups opposed HB 1121, saying the background checks would be too slow and a burden for rural law enforcement offices.

House Bill 1143 (Passed)

Directs the state to conduct audits of Medicaid client correspondence, including letters and notices. Audits will be conducted in 2020 and 2023 and thereafter at the discretion of the state auditor. HB 1143 came from a 2016 interim committee that studied complaints that HCPF’s communications to clients were too confusing.

House Bill 1186 (Passed)

Requires insurers that provide contraceptive coverage to allow people to get up to a year's supply at a time. Previously, insurers only had to provide a few months’ worth of contraception.

House Bill 1187 (Failed)

Sponsored by two moderate Republicans, this bill sought to modify how the TABOR revenue cap is calculated. The new proposal would have based growth of the TABOR revenue limit on the average annual change in Colorado personal income over the previous five years. Currently, the cap is based on changes in inflation and the state population. The bill would have required voter approval for the change, as mandated by TABOR.

House Bill 1221 (Passed)

Creates a program to award grants to local law enforcement targeting unlicensed and unlawful marijuana cultivation or distribution. The bill also establishes criminal penalties for growing pot for another person unless the grower is a primary caregiver.

House Bill 1307 (Failed)

Would have created a program to provide wage replacement for people who take leave from work to care for themselves or a family member for a major medical issue. Similar bills – all known as the Family and Medical Leave Insurance (FAMLI) Act – have died in previous sessions.

Spotlight: House Bill 1353 (Passed)

Authorizes HCPF to continue implementation of the Accountable Care Collaborative (ACC), a Medicaid care delivery system designed to cut costs and improve care coordination. It also requires HCPF to submit an annual progress report to the JBC and the health care committees in both the House and Senate.

Senate Bill 4 (Failed)

Would have allowed Medicaid recipients to pay and receive care from non-Medicaid providers after signing an agreement. Opponents worried this would incentivize providers to drop out of the Medicaid program.

Senate Bill 65 (Passed)

Requires health care professionals and facilities to publish the direct-pay prices they charge for at least their 15 most common services, including medical care and dental, optometric and mental health services. SB 65 was notable as a successful transparency bill, which passed while others did not (see page 13).

Senate Bill 84 (Failed)

Would have prohibited insurers from dropping coverage for a drug that had been covered at the time a person enrolled in their plan. Drug costs could not have been raised during the plan year.

Spotlight: Senate Bill 64 (Failed)

Would have regulated freestanding emergency departments (FSEDs). FSEDs, which are increasing in Front Range suburbs, would have needed a new license and been subject to rules on safety and care standards, staffing, transparency in billing and other requirements. In addition, Colorado would not have licensed any new FSEDs until July 2019, unless the facility was opening in an underserved area. A second try at regulating these facilities this session was discussed, but no bill was introduced.

Senate Bill 91 (Passed)

Puts Colorado in compliance with federal Medicaid rules, which allow services to be delivered in the community as well as a residence. Previously, services had to be provided at home for some Medicaid clients.

Senate Bill 184 (Failed)

Initially, the bill would have authorized marijuana membership clubs for on-site consumption if a locality approved. Legislators then shifted the bill’s focus, but reached a stalemate over how to define “open and public” marijuana use, such as who can legally consume marijuana on a home’s front porch.

Senate Bill 203 (Passed)

States that in certain cases, insurers must cover drugs that are prescribed by a provider and covered by the patient’s insurance formulary without requiring the patient to undergo step therapy (the process by which alternative drugs are tried first). Applies to patients with a terminal condition and patients who have undergone step therapy under another plan or for a discontinued drug.

Senate Bill 268 (Passed)

Allows pharmacists to supervise up to six pharmacy interns or technicians. The previous limit was three.

House Bill 1220 (Passed)

Limits the total number of medical or retail use marijuana plants that can be possessed or grown on a residential property to 12, unless allowed by a local ordinance.

An expanded version of this report is available in PDF form at the bottom of the page under the link titled 2017 Legislation in Review.

Previous Legislation in Review Reports

Legislation in Review Reports are available from 2016, 2015, 2014, 2013, 2012 and 2011.