Sarah Mercer, Mike Feeley, Melissa Kuipers Blake, Doug Friednash, Jia Meeks
BROWNSTEIN HYATT FARBER SCHRECK
The 2021 Colorado legislative session has finally drawn to a close. After briefly convening on the usual January start date, the General Assembly recessed until mid-February in hopes that COVID-19 and the economy would stabilize. By adjournment on June 8, legislators were without masks and broadly in agreement on how to spend the $3.8 million coming to the state through the American Rescue Plan Act. As they do every year, the legislature introduced hundreds of bills.
Here is a summary of several of the most high-profile pieces of legislation this session, some of which passed, some were heavily amended and some were defeated during the process.
Health Care
One of the governor’s top priorities is saving people money on health care—so much so that he put the lieutenant governor in charge of an office bearing the same name. Reducing patient costs for health care is no easy task, but House Bill 21-1232 was designed with that in mind. The bill would have created a so-called public option that would require the state to establish a government-run health insurance plan for all Coloradans if health insurance premiums in the individual and small group market didn’t meet their 20% reduction goal over two years. The bill encountered significant opposition from the business community and health care industry, which led to amendments that stripped out the public option and pared down the mandated premium reduction. As passed, the bill requires development of a new state-standardized health benefit plan as an option next year and requires insurance carriers to begin offering a 10% lower-cost standardized health benefit plan of their own by 2023.
Criminal Justice
In a matter of weeks after George Floyd’s death, Colorado was one of the first states to take legislative action with the passage of Senate Bill 20-217. That bipartisan bill ended qualified immunity for local law enforcement and changed the state’s use of force standard to require that a police officer face an imminent threat before using deadly force. The bill also imposed new data and reporting requirements regarding police encounters with the public. This session, House Bill 21-1250 expanded those reforms by ending qualified immunity for the state patrol and creating new duties for police officers to intervene and report certain conduct. However, the section to again change the state’s use of force standard to require an officer to use deadly force only as a last resort and only after exhausting all reasonable de-escalation tactics, was amended out before the bill’s passage. Another bill, House Bill 21-1251, limiting the use of ketamine and other chemical restraints after Elijah McClain’s death passed its final vote just before adjournment.
Transportation and Environment
Lawmakers almost ran out of ideas for solving Colorado’s transportation funding puzzle. But they introduced SB 21-260. The bill, which passed with only one Republican vote, promises $5.4 billion for transportation over the next decade. The primary funding mechanism is a half-dozen new fees on fuel purchases, deliveries and rideshare trips. Democrats insist these new fees are not new taxes, but Republicans vowed to bring a TABOR challenge. In addition to funding roads and bridges, the bill advances the governor’s goal of reducing greenhouse gas pollution by funding electric vehicle charging infrastructure and expanding incentives for electric vehicle purchases. Linked to this goal, the primary elements of SB 21-200 — which sought to codify the state’s Greenhouse Gas Emissions Reduction Roadmap and which the governor threatened to veto — were amended into HB 21-1266 in a controversial midnight deal that gives the Air Quality Control Commission new and expanded power over emissions reductions across the industrial, manufacturing, oil and gas, and electric utility industries.
Employment
The most hotly debated piece of employment legislation this session was SB 21-087, dubbed the Agricultural Workers Bill of Rights. Among other provisions, the bill requires agricultural workers be paid the state’s $12.32 minimum wage; requires overtime, meal breaks and rest periods; and allows agricultural workers to unionize. The details regarding overtime, meal breaks and rest periods were all pushed to rulemaking. Almost as equally controversial was SB 21-176, which sought to lower the legal threshold for harassment and discrimination claims by codifying an abrogation of case law’s “severe or pervasive” standard. Despite considerable amendments, the bill was defeated in the session’s waning days.
Taxes
Lastly, two Democrat-led tax bills made their final push to passage in the last two days of the session. HB 21-1311 and HB 21-1312 collectively eliminate more than $350 million in tax exemptions, including the insurance company regional home office tax deduction and three deductions for coal companies, while expanding the business personal property tax exemption and the state earned income tax credit. The bills also create a new tax incentive for businesses to become employee-owned, change the definition of taxable property to include digital goods and impose a cap on deductions for charitable donations. By contrast, HB 21-1327 was supported by both Democrats and Republicans and allows S corporations and other pass-through entities to take the full federal deduction on state and local taxes just as C corporations are allowed to do.
During the interim, a handful of committees will meet to study issues and make policy recommendations, while agencies will engage in rulemaking. Before long, it will be January and the General Assembly will be back to introducing hundreds of new bills for consideration and debate.