colorado supreme court colorado state judicial building

103935904_3

COLORADO SUPREME COURT Colorado State Judicial Building Two East 14th Avenue Denver, CO 80203

▲ COURT USE ONLY ▲

Original Proceeding Pursuant to C.R.S. § 1-40-107(2) Appeal from the Colorado Ballot Title Setting Board In the Matter of the Title, Ballot Title, and Submission Clause for Proposed Initiative 2017-2018 #119

Petitioner: Deborah Farrell v. Respondents: David Silverstein and Andrew Graham and Colorado Ballot Title Setting Board: Suzanne Staiert, Jason Gelender, and Glenn Roper

Case No.:

Attorneys for Petitioner Deborah Farrell: Thomas M. Rogers III, #28809 Dietrich C. Hoefner, #46304 LEWIS ROCA ROTHGERBER CHRISTIE LLP 1200 Seventeenth Street, Suite 3000 Denver, CO 80202 Phone: 303.623.9000 Fax: 303.623.9222 Email: [email protected] [email protected]

PETITION FOR REVIEW OF FINAL ACTION OF TITLE SETTING BOARD CONCERNING PROPOSED INITIATIVE 2017-2018 #119

(“TRANSPARENCY IN HEALTH CARE INSURANCE CARRIER BILLING”)

DATE FILED: February 28, 2018 3:21 PM

103935904_3 2

Petitioner Deborah Farrell, a registered elector of the State of Colorado,

pursuant to C.R.S. § 1-40-107(2), respectfully petitions this Court to review the

actions of the Ballot Title Setting Board with respect to the setting of the title and

submission clause for Proposed Initiative 2017-2018 #119 (“Transparency in

Health Care Insurance Carrier Billing”), and states:

STATEMENT OF THE CASE

I. Procedural History of Proposed Initiative #119

On January 11, 2018, Proponents David Silverstein and Andrew Graham

filed Proposed Initiative 2015-2016 #119 (the “Initiative”) with the Office of

Legislative Council. The Initiative is one of a series of four initiatives filed by

Respondents on which Petitioner is seeking review (initiatives #119, #121, #122,

and #123). Each of the four initiatives is related. Initiative #119 would regulate

health insurance carriers, Initiative #122 would regulate healthcare providers, and

Initiatives #121 and #123 are omnibus measures that would each regulate health

insurance carriers, pharmacies, and healthcare providers.1

The review and comment meeting for Initiative #119 was held under C.R.S.

§ 1-40-105(1) on January 23, 2018. Proponents submitted the original, amended, 1 Initiatives #121 and #123, with limited exceptions, include the provisions of Initiatives #119 and #122. As such, judicial economy may best be served by consolidating review of these four initiatives.

103935904_3 3

and final versions of the Initiative to the Secretary of State for title setting on

January 26, 2018. On February 7, 2018, the Title Board set the Initiative’s title. On

February 14, 2018, Petitioner timely filed a Motion for Rehearing on the basis that

the Title Board lacked jurisdiction to set title because amendments to the Initiative

made after the review and comment meeting violate C.R.S. § 1-40-105(2), the

Initiative violates the single subject requirement of article V, section 1(5.5) of the

Colorado Constitution and C.R.S. § 1-40-106.5, and further that the title does not

fairly express the true meaning and intent of the proposed measure.

The Title Board held a rehearing on February 21, 2018 and denied the

Petitioner’s motion except to the extent that the Board made changes to the title.

II. Jurisdiction

Under C.R.S. § 1-40-107(2), Petitioner is entitled to Colorado Supreme

Court review of the Title Board’s actions in setting the Initiative’s title. Petitioner

filed a timely Motion for Rehearing, see C.R.S. § 1-40-107(1), and subsequently

filed this Petition for Review within seven days from the date of the rehearing, see

C.R.S. § 1-40-107(2). As required by C.R.S. § 1-40-107(2), attached to this

Petition are certified copies of: (1) the Proponents’ original, amended, and final

drafts of the Initiative; (2) the title set by the Title Board on February 7, 2018; (3)

the Motion for Rehearing filed by the Petitioner; and (4) the Title Board’s rulings

103935904_3 4

on the Motion for Rehearing as reflected by the title and submission clause set by

the Board after rehearing on February 21, 2018. Petitioner respectfully submits that

the Title Board erred in denying her motion for rehearing on the issues set forth

below. For these reasons, this matter is properly before the Colorado Supreme

Court.

GROUNDS FOR APPEAL

The following is an advisory list of the issues to be addressed in the

Petitioner’s brief:

(1) The Initiative violates the single subject requirement of article V,

section 1(5.5) of the Colorado Constitution and C.R.S. § 1-40-106.5.

While the Initiative purports to address “price transparency in

healthcare billing,” it also requires insurance carriers to make broad

disclosures regarding all forms of remuneration derived from rebates

or other forms of incentive received as the result of healthcare

services or purchases of prescription drugs or medical devices.

(2) The title violates C.R.S. § 1-40-106(3)(b) because it is misleading and

does not reflect a central feature of the Initiative; specifically, the fact

that although the Initiative purports to regulate “healthcare providers,”

103935904_3 5

the Initiative also regulates professionals such as social workers that

are not commonly regarded to be healthcare providers.

PRAYER FOR RELIEF

Petitioner respectfully requests that the Court reverse the Title Board’s

denial of Petitioner’s Motion for Rehearing and direct the Title Board to decline to

set a title on the measure for failure to meet the single-subject requirement, or

alternatively, to set a title that reflects the true intent and meaning of the Initiative.

Respectfully submitted this 28th day of February, 2018.

s/ Thomas M. Rogers III

Thomas M. Rogers III Dietrich C. Hoefner LEWIS ROCA ROTHGERBER CHRISTIE LLP

Attorneys for Petitioner Deborah Farrell

103935904_3 6

CERTIFICATE OF SERVICE

I hereby certify that on February 28, 2018, I electronically filed a true and correct copy of the foregoing PETITION FOR REVIEW OF FINAL ACTION OF TITLE SETTING BOARD CONCERNING PROPOSED INITIATIVE 2017-2018 #119 (“TRANSPARENCY IN HEALTH CARE INSURANCE CARRIER BILLING”) with the clerk of Court via the Colorado Courts E-Filing system and served the same via email and via US Mail on the following:

Martha Tierney 225 East 16th Avenue, Suite 350 Denver, CO 80203 [email protected] Attorney for Respondents David Silverstein and Andrew Graham

Matthew Grove, Assistant Attorney General Office of the Colorado Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor Denver, CO 80203 [email protected] Attorney for the Title Board

s/ Robin Newcomer Of: Lewis Roca Rothgerber Christie LLP

mailto:[email protected]

mailto:[email protected]

DEPARTMENT OF STATE

CERTIFICATE

I, WAYNE W. WILLIAMS, Secretary of State of the State of Colorado, do hereby certify that:

the attached are true and exact copies of the filed text, initial fiscal impact statement, abstract,

motion for rehearing, and the rulings thereon of the Title Board for Proposed Initiative "2017-2018

#119 'Transparency in Health Care Insurance Carrier Billing'"

IN TESTIMONY WHEREOF I have unto set my hand . .

and affixed the Great Seal of the State of Colorado, at the

City of Denver this 26th day of February, 2018.

DATE FILED: February 28, 2018 3:21 PM

Initiative 2017-2018 #119: Healthcare Insurance Carrier Billing Transparency - Final Draft

Be it enacted by the people ofthe state of Colorado:

JAN 2 6 2018 SECTION 1. In Colorado Revised Statutes, add part 3 to article 20 of title 6 as follows:

, .. _ . ! _ Colorado Secretary of Stats 1

6-20-300. Purpose. A DECLARATION FROM THE PEOPLE OF COLORADO.

(1) THE PEOPLE OF COLORADO ENACT THIS LAW REGARDING PRICE TRANSPARENCY IN HEALTHCARE

BILLING TO ESTABLISH COMMON SENSE, ORDER, AND INTEGRITY IN COLORADO'S HEALTHCARE SYSTEM

AND TO SET AN EXAMPLE FOR THE REST OF OUR NATION. THE PEOPLE BELIEVE TRANSPARENCY, IN ALL

ASPECTS OF HEALTHCARE BILLING, IS OF PARAMOUNT IMPORTANCE AND THAT IT WILL NOT, IN ANY WAY,

IMPEDE COMPETITION, BUT RATHER, WILL IMPROVE COMPETITION AND EMPOWER PATIENTS TO BECOME

MORE ACTIVE PARTICIPANTS IN THEIR OWN CARE.

(2) THE PEOPLE UNDERSTAND THAT SOME IN THE HEALTHCARE INDUSTRY MAY FIND PROVISIONS OF THIS

LAW ONEROUS. THE PEOPLE, HOWEVER, BELIEVE THAT THE LACK OF TRANSPARENCY THAT IS THE NORM

AT THE TIME OF THIS LAW'S ENACTMENT IS FAR MORE ONEROUS AND DANGEROUS, AND THUS, FIND THIS

LAW ABSOLUTELY NECESSARY IN ALL OF ITS DETAIL.

(3) THE PURPOSE OF TRANSPARENCY IN HEALTHCARE BILLING IS NOT MERELY TO PROVIDE PATIENTS WITH

THE ABILITY TO SHOP FOR HEALTHCARE SERVICES ON THE BASIS OF PRICE. IN FACT, SHOPPING AROUND

IS ONLY A SMALL ASPECT OF TRANSPARENCY IN HEALTHCARE BILLING, BECAUSE SHOPPING FOR

SERVICES IS NOT ALWAYS PRACTICAL WHEN HEALTHCARE SERVICE IS NEEDED. THE PURPOSE OF

TRANSPARENCY IN HEALTHCARE BILLING, AND OF THIS LAW, IS TO ENSURE THAT COLORADO'S

HEALTHCARE SYSTEM BEGINS TO FUNCTION IN A MANNER WHERE PRICES ARE AVAILABLE TO ANYONE

AND EVERYONE AT ALL TIMES. THE PEOPLE OF COLORADO BELIEVE THAT IF THERE IS TRANSPARENCY IN

HEALTHCARE BILLING, PRICES WILL BE FAIR AND WELL BE DETERMINED BY THE MARKETPLACE,

WHETHER OR NOT THEY PERSONALLY REVIEW ALL PRICES IN ADVANCE OF HEALTHCARE SERVICES.

SECTION 2. In Colorado Revised Statutes, add part 3 to article 20 of title 6 as follows:

PART 3

HEALTHCARE INSURANCE CARRIER BILLING TRANSPARENCY

6-20-301. Short title. THE SHORT TITLE OF THIS PART 3 IS THE "HEALTHCARE INSURANCE CARRIER BILLING

TRANSPARENCY ACT".

6-20-302. Definitions. As USED IN THIS PART 3, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(1) "CMS" MEANS THE CENTERS FOR MEDICARE AND MEDICAID SERVICES.

(2) "HEALTH INSURANCE" OR "HEALTH INSURANCE PLAN" HAS THE SAME MEANING AS "HEALTH COVERAGE

PLAN", AS DEFINED IN SECTION 10-16-102 (34).

(3) "HEALTH INSURANCE CARRIER", "INSURANCE CARRIER", OR "CARRIER" HAS THE SAME MEANING AS

"CARRIER", AS DEFINED IN SECTION 10-16-102 (8).

(4) "HEALTHCARE PROVIDER" OR "PROVIDER" MEANS:

(a) A HEALTHCARE FACILITY LICENSED OR CERTIFIED BY THE DEPARTMENT OF PUBLIC HEALTH AND

ENVIRONMENT PURSUANT TO SECTION 25-1.5-103 (l)(a), WHICH INCLUDES A HOSPITAL, HOSPITAL UNIT

AS DEFINED IN SECTION 25-3-101 (2), PSYCHIATRIC HOSPITAL, COMMUNITY CLINIC, REHABILITATION

HOSPITAL, CONVALESCENT CENTER, COMMUNITY MENTAL HEALTH CENTER, ACUTE TREATMENT UNIT,

FACILITY FOR PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES, NURSING CARE

FACILITY, HOSPICE CARE, ASSISTED LIVING RESIDENCE, DIALYSIS TREATMENT CLINIC, AMBULATORY

SURGICAL CENTER, BIRTHING CENTER, HOME CARE AGENCY, OR OTHER FACILITY OF A LIKE NATURE;

(b) A CLINICAL LABORATORY REGISTERED THROUGH THE CERTIFICATION PROGRAM ADMINISTERED BY

f THE CMS; ,

(c) A FACILITY THAT USES RADIATION MACHINES FOR MEDICAL PURPOSES AND THAT IS REGISTERED BY

THE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT PURSUANT TO STATE BOARD OF HEALTH RULES

ADOPTED IN ACCORDANCE WITH SECTION 25-11-104;

(D) A PERSON WHO IS LICENSED, CERTIFIED, OR REGISTERED BY THE STATE UNDER TITLE 12 OR ARTICLE

3.5 OF TITLE 25 TO PROVIDE HEALTHCARE SERVICES AND WHO DIRECTLY BILLS PATIENTS OR THIRD-

PARTY PAYERS FOR THE SERVICES, INCLUDING AN ACUPUNCTURIST, ATHLETIC TRAINER, AUDIOLOGIST,

PODIATRIST, CHIROPRACTOR, DENTIST, DENTAL HYGEENIST, MASSAGE THERAPIST, PHYSICIAN,

PHYSICIAN ASSISTANT, ANESTHESIOLOGIST ASSISTANT, DIRECT-ENTRY -MIDWIFE, NATUROPATHIC

DOCTOR, NURSE, CERTIFIED NURSE AIDE, NURSING HOME ADMINISTRATOR, OPTOMETRIST,

OCCUPATIONAL THERAPIST, OCCUPATIONAL THERAPY ASSISTANT, PHYSICAL THERAPIST, PHYSICAL

THERAPY ASSISTANT, RESPIRATORY THERAPIST, PSYCHIATRIC TECHNICIAN, PSYCHOLOGIST, SOCIAL

WORKER, CLINICAL SOCIAL WORKER, MARRIAGE AND FAMILY THERAPIST, PROFESSIONAL COUNSELOR,

PSYCHOTHERAPIST, ADDICTION COUNSELOR, SURGICAL ASSISTANT, SURGICAL TECHNOLOGIST, SPEECH-

LANGUAGE PATHOLOGIST, OR EMERGENCY MEDICAL SERVICE PROVIDER; OR

(e) A MEDICAL GROUP, INDEPENDENT PRACTICE ASSOCIATION, OR PROFESSIONAL CORPORATION

PROVIDING HEALTHCARE SERVICES.

(f) TO THE EXTENT NOT COVERED BY SUBSECTIONS 5(a) THROUGH 5(e) OF THIS SECTION, FREE

STANDING EMERGENCY ROOMS AND URGENT CARE CENTERS AND THOSE PROVIDING HEALTHCARE

SERVICES UNDER OTHER DESCRIPTIONS.

(5) "HEALTHCARE SERVICE" OR "SERVICE" MEANS A SERVICE, PROCEDURE, TREATMENT, OR GROUP OF

SERVICES, PROCEDURES, OR TREATMENTS DELIVERED BY A HEALTHCARE PROVIDER. HEALTHCARE

SERVICE INCLUDES SERVICES RENDERED THROUGH TELEMEDICINE AS DEFINED IN SECTION 12-36-102.5

(8).

(6) "THIRD-PARTY PAYER", "THIRD-PARTY PAYOR", "PAYOR", OR "PAYER" MEANS A HEALTH INSURANCE

CARRIER, SELF-INSURED EMPLOYER, OR OTHER PUBLIC OR PRIVATE THIRD PARTY, INCLUDING A THIRD-

PARTY ADMINISTRATOR OR INTERMEDIARY, THAT IS RESPONSIBLE FOR PAYING ALL, OR A PORTION OF,

THE CHARGES FOR HEALTHCARE SERVICES DELIVERED TO A PATIENT.

6-20-303. Provider-carrier contracts. A CONTRACT ISSUED, AMENDED, OR RENEWED ON OR AFTER APRIL 30,

2019, BY, BETWEEN, OR ON BEHALF OF A HEALTH INSURANCE PLAN AND A HEALTHCARE PROVIDER SHALL NOT

CONTAIN ANY PROVISION THAT RESTRICTS THE ABILITY OF THE HEALTH INSURANCE PLAN, THIRD-PARTY PAYER, OR

HEALTHCARE PROVIDER TO FURNISH PATIENTS ANY INFORMATION REQUIRED TO BE PUBLISHED UNDER THIS ACT.

ANY CONTRACTUAL PROVISION INCONSISTENT WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.

SECTION 3. In Colorado Revised Statutes, add 10-16-147 as follows:

10-16-147. Carrier disclosures - rules - definitions. (1) THE PURPOSE OF THIS SECTION IS TO:

(a) PROVIDE TRANSPARENCY REGARDING HOW INSURANCE CARRIERS CALCULATE PAYMENTS OR

REIMBURSEMENTS TO PROVIDERS FOR HEALTHCARE SERVICES FURNISHED TO COVERED PERSONS; AND

(b) ENABLE A COVERED PERSON WHO HAS RECEIVED AND BEEN BILLED FOR A HEALTHCARE SERVICE,

MEDICAL DEVICE, OR PRESCRIPTION DRUG TO DETERMINE THE AMOUNT THAT THE CARRIER WILL PAY OR

REIMBURSE THE PROVIDER UNDER THE TERMS OF THE APPLICABLE HEALTH COVERAGE PLAN. IT IS

RECOGNIZED THAT THE SERVICES TO BE RENDERED ARE NOT ALWAYS ESTIMABLE PRIOR TO SERVICE

DELIVERY. THAT SHOULD NOT BE CONFUSED WITH THE INTENT OF THIS SECTION.

(2) EACH CARRIER SHALL POST ON ITS WEBSITE AND PROVIDE, IN WRITING UPON REQUEST FROM A COVERED

PERSON, THE FOLLOWING INFORMATION:

(a) THE SPECIFIC BASIS FOR DETERMINING THE PAYMENT OR REIMBURSEMENT TO A PROVIDER FOR A

HEALTHCARE SERVICE RENDERED BY THE PROVIDER TO A COVERED PERSON UNDER THE HEALTH

COVERAGE PLAN, INCLUDING:

(I) WHETHER THE PAYMENT IS BASED ON A PERCENTAGE OF THE PROVIDER'S CHARGES, A FLAT DAILY

OR PER DIEM RATE, COPAYMENTS, DEDUCTIBLES, OR ANY OTHER FACTOR, VARIABLE, OR SYSTEM

DEVISED AND NOT LISTED HERE THAT IS USED FOR DETERMINING THE PAYMENT OR REIMBURSEMENT

AMOUNT; AND

(II) HOW THE PAYMENT OR REIMBURSEMENT IS CALCULATED FOR AN IN-NETWORK VERSUS OUT-OF-

NETWORK PROVIDER;

(b) ITEMS THAT APPEAR AS CHARGES ON AN EXPLANATION OF BENEFITS OR PROVIDER BILLING

STATEMENT BUT FOR WHICH THE CARRIER DOES NOT PAY;

(c) DETAILED INFORMATION REGARDING COVERAGE AND NEGOTIATED PAYMENT INFORMATION BY PLAN

TYPE AND PARTICIPATING PROVIDER; AND

(d) PRESCRIPTION DRUG PRICES IN A FORM AND MANNER DETERMINED BY THE COMMISSIONER BY RULE.

(3) EACH CARRIER SHALL PUBLISH ANNUALLY, UNLESS DIRECTED BY THE COMMISSIONER BY RULE TO

PUBLISH MORE FREQUENTLY, DETAILED INFORMATION, IN A FORM AND MANNER DETERMINED BY THE

COMMISSIONER BY RULE, REGARDING ALL FORMS OF REMUNERATION DERIVED FROM REBATES OR OTHER

FORMS OF INCENTIVE RECEIVED AS THE RESULT OF HEALTHCARE SERVICES OR PURCHASES OF

PRESCRIPTION DRUGS OR MEDICAL DEVICES.

(4) ON OR BEFORE APRIL 30,2019, THE COMMISSIONER SHALL PROMULGATE RULES AS ARE NECESSARY FOR

THE IMPLEMENTATION, ADMINISTRATION, AND ENFORCEMENT OF THIS SECTION, AND SHALL,

THEREAFTER, REVISE SUCH RULES AS ARE NECESSARY.

(5) IF THE COMMISSIONER DETERMINES THAT A CARRIER HAS VIOLATED THE REQUIREMENTS OF THIS

SECTION, THE COMMISSIONER MAY SUSPEND OR REVOKE THE LICENSE OF THE CARRIER OR IMPOSE A

CIVIL FINE OF NOT MORE THAN FIFTY THOUSAND DOLLARS FOR EACH VIOLATION, AND IF THE CARRIER

CONTINUES TO VIOLATE THE REQUIREMENTS OF THIS SECTION, THE COMMISSIONER MAY IMPOSE A CIVIL

FINE FOR EACH DAY OF VIOLATION. FINES IMPOSED AND PAID UNDER THIS SECTION SHALL BE DEPOSITED

IN THE GENERAL FUND.

(6) AS USED IN THIS SECTION, "COMMISSIONER" MEANS THE COMMISSIONER OF INSURANCE APPOINTED

PURSUANT TO SECTION 10-1-104,

(7) AS USED IN THIS SECTION, "PRESCRIPTION DRUG PRICE" IS THE PRICE FOR PRESCRIPTION DRUGS THAT

CARRIERS HAVE NEGOTIATED WITH PROVIDERS, PHARMACIES, DISTRIBUTORS, OR MANUFACTURERS.

(8) AS USED IN THIS SECTION, "PHARMACY" MEANS ANY ENTITY LICENSED BY THE BOARD PURSUANT TO

ARTICLE 42.5 OF TITLE 12 TO ENGAGE IN THE PRACTICE OF PHARMACY, AS DEFINED IN SECTION 12-42.5

102 (31). THE TERM DOES NOT INCLUDE A HOSPITAL, AMBULATORY SURGICAL CENTER, OR OTHER

PROVIDERS WHICH ADMINISTER PRESCRIPTION DRUGS AS PART OF A HEALTHCARE SERVICE AND FOR

WHICH THE CHARGE FOR PRESCRIPTION DRUGS IS INCLUDED IN THEIR CHARGEMASTER OR FEE SCHEDULE.

SECTION 4. Effective date. THIS ACT TAKES EFFECT JANUARY 1,2019. i

Submitted by:

David Silverstein, 555 17th Street (Suite 400), Denver, CO 80202

[email protected] 303-684-7391 (tel) 805-690-8065 (fax)

Andrew Graham, 3464 S. Willow, Denver, CO 80231


Initiative 2017-2018 #119: Healthcare Insurance Carrier Billing Transparency - Amended Draft

Be it enacted by the people of the state of Colorado: r

SECTION 1. In Colorado Revised Statutes, add part 3 efto article 20 of title 6 as follows: ^ ® 2-8lPj%

6-20-300. Purpose. A DECLARATION FROM THE PEOPLE OF COLORADO. §F F TTI#






MORE ACTIVE PARTICIPANTS IN THEIR OWN CARE.

(2) THE "PEOPLE UNDERSTAND THAT SOME IN THE HEALTHCARE INDUSTRY MAY FIND PROVISIONS OF THIS











HEALTHCARE BILLING, PRICES WILL BE FAIR AND WILL BE DETERMINED BY THE MARKETPLACE,


SECTION 2. In Colorado Revised Statutes, add part 3 ©fto article 20 of title 6 as follows:

PART 3



TRANSPARENCY ACT".



(2) "COMMISSIONER" MEANS TUT COMMISSIONER OF INSUIUNGFT

{34(2) "HEALTH INSURANCE" OR "HEALTH INSURANCE PLAN" HAS THE SAME MEANING AS "HEALTH

COVERAGE PLAN", AS DEFINED IN SECTION 10-16-102X34).

FMI) "HEALTH INSURANCE CARRIER", "INSURANCE CARRIER", OR "CARRIER" HAS THE SAME MEANING AS

"CARRIER", AS DEFINED IN SECTION 10-16-102X8).

{5 LI S) "HEALTHCARE PROVIDER" OR "PROVIDER" MEANS:



AS DEFINED IN SECTION 25-3-101„(2), PSYCHIATRIC HOSPITAL, COMMUNITY CLINIC, REHABILITATION





(b) A CLINICAL LABORATORY REGISTERED THROUGH THE CERTIFICATION PROGRAM ADMINISTERED BY

THE CMS;



ADOPTED IN ACCORDANCE WITH SECTION 25-11-104; .

(d) A PERSON WHO IS LICENSED, CERTIFIED, OR REGISTERED BY THE STATE UNDER TITLE 12 OR ARTICLE



PODIATRIST, CHIROPRACTOR, DENTIST, DENTAL HYGIENIST, MASSAGE THERAPIST, PHYSICIAN,

PHYSICIAN ASSISTANT, ANESTHESIOLOGIST ASSISTANT, DIRECT-ENTRY MIDWIFE, NATUROPATHIC









(f) TO THE EXTENT NOT COVERED BY SUBSECTIONS 5(a) THROUGH 5(e) QF THIS SECTION. FREE

STANDING EMERGENCY ROOMS AND URGENT CARE CENTERS AND THOSE PROVIDING HEALTHCARE

SERVICES UNDER OTHER DESCRIPTIONS.

F&¥5) "HEALTHCARE SERVICE" OR "SERVICE" MEANS A SERVICE, PROCEDURE, TREATMENT, OR GROUP OF


SERVICE INCLUDES SERVICES RENDERED THROUGH TELEMEDICENE AS DEFINED IN SECTION 12-36-102.5

(8)OFRQTHFR^EMOTERMODILO, OR• V F RTUATRME ANS AS MAY PI USCD IN 11 ID-FUTURE.

(7) "PHARMACY" MEANS OR

' PISTRIBUTFS PRESCRIPTION DRUGS •PULTSUA^JT TO ARTICLE 42.5 OR TITLE 12. ILLL TERM DOCS NOT

PRESC WHQN4?RUGS4S-»<€44FLRAE> IN THEIR CIIARGEMASTCR OR RRX-BGHEBUUR

FS^-^PRESCRIP'TTON DRUG PRICE" IS TJ IE PRICE FOR PRESCRIPTION DRUGS THAT CARRIERS [IAVC NEGOTIATED

(M6) "THIRD-PARTY PAYER", "THIRD-PARTY PAYOR", "PAYOR", OR "PAYER" MEANS A HEALTH

INSURANCE CARRIER, SELF-INSURED EMPLOYER, OR OTHER PUBLIC OR PRIVATE THIRD PARTY,

INCLUDING A THIRD-PARTY ADMINISTRATOR OR INTERMEDIARY, THAT IS RESPONSIBLE FOR PAYING ALL,

OR A PORTION OF, THE CHARGES FOR HEALTHCARE SERVICES DELIVERED TO A PATIENT.

6-20-303. Provider-carrier contracts.,

(1>A CONTRACT ISSUED, AMENDED, OR RENEWED ON OR AFTER APRIL 30,2019, BY, BETWEEN, OR ON BEHALF OF A

HEALTH INSURANCE PLAN AND A HEALTHCARE PROVIDER SHALL NOT CONTAIN ANY PROVISION THAT RESTRICTS THE

ABILITY OF THE HEALTH INSURANCE PLAN, THIRD-PARTY PAYER, OR HEALTHCARE PROVIDER TO FURNISH PATIENTS

ANY INFORMATION REQUIRED TO BE PUBLISHED UNDER THIS ACT._

(2) ANY CONTRACTUAL PROVISION INCONSISTENT WITH THIS SECTION SHALL BE VOID AND UNENFORCEABLE.

SECTION 3. In Colorado Revised Statutes, add 10-16-147 as follows: I

10-16-147. Carrier disclosures - rules - definitions.

(1) THE PURPOSE OF THIS SECTION IS TO:
















AMOUNT; AND


NETWORK PROVIDER:?





(d) PPRESCRIPTION DRUG PRICES IN A FORM AND MANNER DETERMINED BY THE COMMISSIONER BY RULE.

(3) EACH CARRIER SHALL PUBLISH ANNUALLY, UNLESS DIRECTED BY THE COMMISSIONER BY RULE TO

PUBLISH MORE FREQUENTLY, DETAILED INFORMATION, IN A FORM AND MANNER DETERMINED BY THE

COMMISSIONER BY RULE. REGARDING ALL FORMS OF REMUNERATION DERIVED FROM REBATES OR OTHER

FORMS OF INCENTIVE RECEIVED AS THE RESULT OF HEALTHCARE SERVICES OR PURCHASES OF

PRESCRIPTION DRUGS OR MEDICAL DEVICES.




(5) IF THE COMMISSIONER DETERMINES THAT A CARRIER HAS VIOLATED THE REQUIREMENTS OF THIS

SECTION. THE COMMISSIONER MAY SUSPEND OR REVOKE THE LICENSE OF THE CARRIER OR IMPOSE A

CIVIL FINE OF NOT MORJ:. THAN FIFTY THOUSAND DOLLARS FOR EACH VIOLATION. AND IF THE CARRIER

CONTINUES TO VIOLATE THE REQUIREMENTS OF THIS SECTION. THE COMMISSIONER MAY IMPOSE A CIVIL

FINE FOR EACH DAY OF VIOLATION. FINES IMPOSED AND PAID UNDER THIS SECTION SHALL BE DEPOSITED

IN T£IL GENERAL FUND. :

(6) As USED RN THIS SECTION. "COMMISSIONER" MEANS THE COMMISSIONER OF INSURANCE APPOINTED

PURSUANT TO SECTION 10-1-104.

(7) AS USED IN THIS SECTION, "PRESCRIPTION DRUG PRICE" IS THE PRICE FOR PRESCRIPTION DRUGS THAT

CARRIERS HAVE NEGOTIATED WITH PROVIDERS, PHARMACIES. DISTRIBUTORS. OR MANUFACTURERS.

(8) AS USED IN THIS SECTION. "PHARMACY" MEANS ANY ENTITY LICENSED BY THE BOARD PURSUANT TO

ARTICLE 42.5 OF TITLE 12 TO ENGAGE IN THE PRACTICE OF PHARMACY. AS DEFINED IN SECTION 12-42.5-

102 (31). TL IE TERM DOES NOT 11 VCLUDE A HOSPITAL. AMBULA" TORY SURGICAL CENTER. OI I OTHER

PROVIDERS < AHICH ADMINISTER PI DESCRIPTION DRUGS AS PART O F A HEALTHCARE SERVICE / \M FOR

WHICH THE C TIARGEFORPRESCRIPI TON DRUGS IS INCLUDED INTHEI R CHARG EM ASTER OR FEE SC. HEDULE.

SECTION 4. Effective date. THIS ACT TAKES EFFECT APFTFC-3-QJ ANIJARY L 2019.

Submitted by: ;


dayidsIiv€rstem@brokenhea]tlieare.org 303-684-7391 (tel) 805-690-8065 (fax)



Initiative 2017-2018 #119: Transparency in Health Care Insurance Carrier Billing - Original Draft

Be it enacted by the people of the state of Colorado:

SECTION 1. In Colorado Revised Statutes, add part 3 of article 20 of title 6 as follows:

6-20-300. Purpose. A DECLARATION FROM THE PEOPLE OF COLORADO.






MORE ACTWE PARTICIPANTS IN THEIR OWN CARE.

(2) THE PEOPLE UNDERSTAND THAT SOME IN THE HEALTHCARE INDUSTRY MAY FIND PROVISIONS OF THIS











HEALTHCARE BILLING, PRICES WILL BE FAIR AND WILL BE DETERMINED BY THE MARKETPLACE,


SECTION 2. In Colorado Revised Statutes, add part 3 of article 20 of title 6 as follows:


TRANSPARENCY ACT".



(2) "COMMISSIONER" MEANS THE COMMISSIONER OF INSURANCE.

(3) "HEALTH INSURANCE" OR "HEALTH INSURANCE PLAN" HAS THE SAME MEANING AS "HEALTH COVERAGE

PLAN", AS DEFINED IN SECTION 10-16-102(34).

(4) "HEALTH INSURANCE CARRIER", "INSURANCE CARRIER", OR "CARRIER" HAS THE SAME MEANING AS

"CARRIER", AS DEFINED IN SECTION 10-16-102(8).

(5) "HEALTHCARE PROVIDER" OR "PROVIDER" MEANS:



AS DEFINED IN SECTION 25-3-101(2), PSYCHIATRIC HOSPITAL, COMMUNITY CLINIC, REHABILITATION



PART 3


Initiative 2017-2018 #119: Transparency in Health Care Insurance Carrier Billing - Original Draft



(B) A CLINICAL LABORATORY REGISTERED THROUGH THE CERTIFICATION PROGRAM ADMINISTERED BY

THE CMS; ' '



ADOPTED IN ACCORDANCE WITH SECTION 25-11-104;

(d) A PERSON WHO IS LICENSED, CERTIFIED, OR REGISTERED BY THE STATE UNDER TITLE 12 OR ARTICLE



PODIATRIST, CHIROPRACTOR, DENTIST, DENTAL HYGIENIST, MASSAGE THERAPIST, PHYSICIAN,

PHYSICIAN ASSISTANT, ANESTHESIOLOGIST ASSISTANT, DIRECT-ENTRY MIDWIFE, NATUROPATHIC









(f) TO THE EXTENT NOT COVERED BY SECTION (a) THROUGH (e), FREE-STANDING EMERGENCY ROOMS

AND URGENT CARE CENTERS AND THOSE PROVIDING HEALTHCARE SERVICES UNDER OTHER

DESCRIPTIONS.

(6) "HEALTHCARE SERVICE" OR "SERVICE" MEANS A SERVICE, PROCEDURE, TREATMENT, OR GROUP OF


SERVICE INCLUDES SERVICES RENDERED THROUGH TELEMEDICINE OR OTHER REMOTE, MOBILE, OR

VIRTUAL MEANS AS MAY BE USED IN THE FUTURE.

(7) "PHARMACY" MEANS ANY ENTITY WHICH ADMINISTERS, COMPOUNDS, DELIVERS, DISPENSES, OR

DISTRIBUTES PRESCRIPTION DRUGS PURSUANT TO ARTICLE 42.5 OF TITLE 12. THE TERM DOES NOT

INCLUDE A HOSPITAL, AMBULATORY SURGICAL CENTER, OR OTHER PROVIDERS WHICH ADMINISTER

PRESCRIPTION DRUGS AS PART OF A HEALTHCARE SERVICE AND FOR WHICH THE CHARGE FOR

PRESCRIPTION DRUGS IS INCLUDED IN THEIR CHARGEMASTER OR FEE SCHEDULE.

(8) "PRESCRIPTION DRUG PRICE" IS THE PRICE FOR PRESCRIPTION DRUGS THAT CARRIERS HAVE NEGOTIATED

WITH PROVIDERS, PHARMACIES, DISTRIBUTORS, OR MANUFACTURERS.

(9) "THIRD-PARTY PAYER", "THIRD-PARTY PAYOR", "PAYOR", OR "PAYER" MEANS A HEALTH INSURANCE

CARRIER, SELF-INSURED EMPLOYER, OR OTHER PUBLIC OR PRIVATE THIRD PARTY, INCLUDING A THIRD-

PARTY ADMINISTRATOR OR INTERMEDIARY, THAT IS RESPONSIBLE FOR PAYING ALL, OR A PORTION OF,

THE CHARGES FOR HEALTHCARE SERVICES DELIVERED TO A PATIENT.

6-20-303. Provider-carrier contracts.

(1) A CONTRACT ISSUED, AMENDED, OR RENEWED ON OR AFTER APRIL 30, 2019, BY, BETWEEN, OR ON

BEHALF OF A HEALTH INSURANCE PLAN AND A HEALTHCARE PROVIDER SHALL NOT CONTAIN ANY

PROVISION THAT RESTRICTS THE ABILITY OF THE HEALTH INSURANCE PLAN, THIRD-PARTY PAYER, OR

HEALTHCARE PROVIDER TO FURNISH PATIENTS ANY INFORMATION REQUIRED TO BE PUBLISHED UNDER

initiative 2017-2018 #119: Transparency in Health Care Insurance Carrier Billing - Original Draft

THIS ACT.

(2) ANY CONTRACTUAL PROVISION INCONSISTENT WITH THIS SECTION SHALL BE VOID AND

UNENFORCEABLE. ' I

SECTION 3. In Colorado Revised Statutes, add 10-16-147 as follows:

10-16-147. Carrier disclosures - rules.

(1) THE PURPOSE OF THIS SECTION IS TO:
















AMOUNT; AND


NETWORK PROVIDER.





(d) PRESCRIPTION DRUG PRICES IN A FORM AND MANNER DETERMINED BY THE COMMISSIONER.

(3) EACH CARRIER SHALL PUBLISH ANNUALLY, UNLESS DIRECTED BY THE COMMISSIONER TO PUBLISH MORE

FREQUENTLY, DETAILED INFORMATION, IN A FORM AND MANNER DETERMINED BY THE COMMISSIONER,

REGARDING ALL FORMS OF REMUNERATION DERIVED FROM REBATES OR OTHER FORMS OF INCENTIVE

RECEIVED AS THE RESULT OF HEALTHCARE SERVICES OR PURCHASES OF PRESCRIPTION DRUGS OR

MEDICAL DEVICES.




Initiative 2017-2018 #119: Transparency in Health Care insurance Carrier Billing - Original Draft

SECTION 4. Effective date. THIS ACT TAKES EFFECT APRIL 30,2019.

Submitted by:

I





Colorado

Legislative

Council

Staff

Initiative #119

INITIAL FISCAL

IMPACT STATEMENT

Date: February 6, 2018 Fiscal Analyst: Bill Zepernick (303-866-4777)

LCS TITLE: TRANSPARENCY IN HEALTH CARE INSURANCE CARRIER BILLING

Fiscal Impact Summary FY 2018-19 FY 2019-20 j|

State Revenue less than $20,000 1

General Fund . less than $20,000 |

State Expenditures $16,056 $31,557 I Cash Funds 16,056 31,557 1

Note: This initial fiscal impact estimate has been prepared for the Title Board. If the

initiative is placed on the ballot, Legislative Council Staff may revise this estimate for the

Blue Book Voter Guide if new information becomes available.

Summary of Measure

Initiative #119 requires health insurance carriers to post on their website and make available

to covered persons upon request the following information:

• the basis for determining the payment or reimbursement to a provider for a health

care service rendered by the provider to a covered person, including the factors on

which the payment is based and whether the payment is calculated for an in-network

or out-of-network provider.

« items that appear as charges on an explanation of benefits or provider billing statement

which the carrier does not pay;

• detailed information regarding coverage and negotiated payment information by plan

type and participating provider; and

• prescription drug prices.

In addition, the health insurance carriers must publish detailed information on all forms of

remuneration derived from rebates or other forms of incentives received as a result of health care

services or purchases of prescription drugs or medical devices. The Commissioner of Insurance

is required to promulgate rules concerning the measure's requirements on insurance carriers by

April 30, 2019. If the Commissioner determines that a health insurance carrier is not complying

with the provisions of the measure, the Commissioner may suspend or revoke the carrier's license,

or impose a civil penalty up to $50,000, with an additional fine for each day of continued

noncompliance. Fine revenue is deposited into the General Fund.

Lastly, the measure specifies that contracts between insurance carriers and health care

providers and facilities cannot contain any provision that restricts the ability of the health insurance

plan, third-party payer, or health care provider to furnish patients any information required to be

published under the measure. Any such provision in a contract is void and unenforceable.

February 6, 2018

Initiative #119

State Revenue

Initiative #119 potentially increases General Fund revenue by up to $20,000 per year

beginning in FY 2019-20. This revenue is from civil fines levied against health insurance carriers.

Because the Commissioner of Insurance has discretion in the amount of any fine imposed, the

exact revenue impact cannot be estimated. Overall, a high level of compliance is assumed, so fine

revenue is expected to be less than $20,000 per year. Based on the rule-making deadlines in the

measure and assuming a period for health insurance carriers to come into compliance, fine

revenue is not expected prior to the start of FY 2019-20.

State Diversions

This measure, if enacted, will divert $16,056 from the General Fund in FY 2018-19 and

$31,557 in FY 2019-20. This revenue diversion occurs because the measure increases costs in

the Department of Regulatory Agencies, Division of Insurance, which is funded with premium tax

revenue that would otherwise be credited to the General Fund.

State Expenditures

Initiative #119 increases expenditures by $16,056 and 0.1 FTE in FY 2018-19 and $31,557

and 0.3 FTE in FY 2019-20 in DORA. These costs are paid from the Division of Insurance Cash

Fund. The measure will also impact workload and potentially costs in several other state agencies.

Costs are summarized in Table 1 and discussed below.

Table 1. Expenditures Under initiative #119 |

Cost Components FY 2018-19 FY 2019-20 1

Personal Services $9,100 $21,840

FTE 0.1 FTE 0.3 FTE

Legal Services 5,328 5,328

Employee Benefits and Insurance 1,628 4,389

TOTAL $16,056 $31,557 |

Department of Regulatory Agencies. The Commissioner of Insurance is required to

establish rules for disclosures by health insurance carriers. Generally, it is assumed that outreach

with health insurance carriers about these new rules and requirements will be conducted within

existing communication channels by staff in the division. An additional 0.1 FTE is required to

conduct rulemaking in the first year and an additional 0.3 FTE is required to respond to consumer

inquiries and complaints on an ongoing basis. Staff costs are prorated in the first year to reflect

a start date of February 1, 2019. The division will also have costs for legal services provided by

the Department of Law for rulemaking and enforcement activity.

State employee health insurance. To the extent that this measure increases

administrative costs for health insurance carriers, costs for state employee health insurance may

increase. Because state employee health insurance contributions are based upon prevailing

market rates, with costs shared between the employer and employee, this measure is not expected

to affect the state's share of employee health insurance premiums until FY 2019-20. Because

February 6, 2018

Initiative #119

insurance rates are influenced by a number of variables, the exact effect of this measure cannot

be determined. Any increase caused by the measure will be addressed through the total

compensation analysis included in the annua! budget process.

Office of Administrative Courts and triai courts. The measure may potentially increase

workload for the Office of Administrative Courts in the Department of Personnel and Administration

and the trial courts in the Judicial Department in several ways. First, health insurance carriers may

challenge enforcement actions against them for noncompliance with the measure, which would

likely first be heard by an administrative law judge, and potentially appealed to the trial courts.

Assuming a high level of compliance, these impacts are likely minimal and can be accomplished

within existing appropriations.

Local Government Impact

Similar to the state employee insurance impact discussed above, local governments offering

health insurance coverage to their employees may experience an increase in costs. To the extent

that the requirements of the measure lead to higher insurance premiums, local government costs

for employee health insurance may increase. Health insurance premiums depend on a variety of

factors and an exact estimate of the potential increase cannot be determined.

Economic Impact

By promoting greater transparency in billing by health insurance carriers, Initiative #119 may

help consumers more effectively spend their health care dollars, which over the long term could

lead to lower health care costs for Coloradans. However, these savings may be offset by higher

premiums to the extent that the measure increases administrative costs for health insurance

carriers.

Effective Date

The measure takes effect on January 1, 2019, if approved by voters at the 2018 general

election.

State and Local Government Contacts

Corrections

Higher Education

Judicial

Personnel

Counties

Human Services

Law

Regulatory Agencies

Health Care Policy and Financing

Information Technology

Municipalities

Public Health and Environment

February 6, 2018

Initiative #119

Abstract of Initiative 119: TRANSPARENCY IN HEALTH CARE INSURANCE CARRIER

BILLING

This initial fiscal estimate, prepared by the nonpartisan Director of Research of the

Legislative Council as of February 5, 2018, identifies the following impacts:

The abstract includes estimates of the fiscal impact of the initiative. If this initiative is to be

placed on the ballot, Legislative Council Staff will prepare new estimates as part of a fiscal impact

statement, which includes an abstract of that information. All fiscal impact statements are available

at www.ColoradoBlueBook.com and the abstract will be included in the ballot information booklet

that is prepared for the initiative.

Sfafe expenditures. Initiative #119 requires health insurance carriers to disclose cost and

billing information to consumers. The Department of Regulatory Agencies must establish rules and

take action to implement the measure's requirements, which will increase state expenditures by

$16,056 in FY 2018-19 and $31,557 in FY 2019-20. Additional costs may be incurred to the extent

the measure leads to higher state employee insurance premiums or results in litigation in the

courts.

State revenue. Initiative #119 allows fines to be levied on health insurance carriers that

do not comply with the its disclosure requirements. This potentially increases state revenue from

fines by up to $20,000 per year beginning in FY 2019-20.

Local government. The measure potentially increases costs for local governments that

pay for employee health insurance.

Economic impact. By promoting greater transparency in billing by health insurance

carriers, Initiative #119 may help consumers more effectively spend their health care dollars, which

over the long term could lead to lower health care costs for Coloradans. Fiowever, these savings

may be offset by higher premiums to the extent that the measure increases administrative costs

for health insurance carriers.

Ballot Title Setting Board

Proposed Initiative 2017-2018 #1191

The title as designated and fixed by the Board is as follows:

A change to the Colorado Revised Statutes concerning a requirement that health care

insurers publish health insurance plan information, and, in connection therewith, requiring health

insurers to publicly disclose: 1) the basis for determining payment or reimbursement amounts to

health care providers, 2) the items that appear as charges on an explanation of benefits that the

insurer does not pay, 3) detailed coverage and negotiated payment information by plan type and

provider, 4) prescription drug prices negotiated with providers, pharmacies, distributors, and

manufacturers, and 5) all rebates or other incentives; authorizing penalties for violations; and

prohibiting any contract between a health insurance plan and a health care provider from restricting

the publication of the required health insurance plan information.

The ballot title and submission clause as designated and fixed by the Board is as follows:

Shall there be a change to the Colorado Revised Statutes concerning a requirement that

health care insurers publish health insurance plan information, and, in connection therewith,

requiring health insurers to publicly disclose: 1) the basis for determining payment or

reimbursement amounts to health care providers, 2) the items that appear as charges on an

explanation of benefits that the insurer does not pay, 3) detailed coverage and negotiated payment

information by plan type and provider, 4) prescription drug prices negotiated with providers,

pharmacies, distributors, and manufacturers, and 5) all rebates or other incentives; authorizing

penalties for violations; and prohibiting any contract between a health insurance plan and a health

care provider from restricting the publication of the required health insurance plan information?

Hearing February 7, 2018:

Single subject approved; staff draft amended; titles set.

Hearing adjourned 2:47p.m.

1 Unofficially captioned "Transparency in Health Care Insurance Carrier Billing" by legislative staff for

tracking purposes. This caption is not part of the titles set by the Board.

• RECEIVED -

. m 1 • » i s tslsrad8 Secretary of State

BEFORE COLORADO STATE TITLE SETTING BOARD

In re Ballot Title and Submission Clause for 2017-2018 Initiative #119 ("Transparency in

Health Care Insurance Carrier Billing")

Deborah Farrell, Objector.

MOTION FOR REHEARING

Pursuant to C.R.S. § 1 -40-107, Objector, Deborah Farrell, a registered elector of the State

of Colorado, through her legal counsel, Lewis Roca Rothgerber Christie LLP, submits this

Motion for Rehearing of the Title Board's February 7,2018 decision to set the title of 2017-2018

Initiative #119 ("Initiative"), and states:

I. The Initiative has been substantially amended and must be resubmitted for review

and comment.

The final version of the Initiative includes a substantial amendment that was not in the

original version and that was not in direct response to the review and comment

memorandum (attached as Ex. A), and therefore must be resubmitted to the offices of

Legislative Council and Legislative Legal Services for review and comment under C.R.S.

§ 1-40-105(2).

® As compared to the original version of the Initiative, the final version adds

§ 10-16-147(5), which creates specific penalties that did not exist in the

original text:

"If the Commissioner determines that a Carrier has violated the

requirements of this section, the Commissioner may suspend or revoke the

license of the Carrier or impose a civil fine of not more than fifty thousand

dollars for each violation, and if the carrier continues to violate the

requirements of this section, the Commissioner may impose a civil fine for

each day of the violation. Fines imposed and paid under this section shall

be deposited in the general fund."

103589079 1

II. The Initiative impermissibly contains multiple separate and distinct subjects in

violation of the constitutional single-subject requirement.

While the Initiative purports to address only the subject of transparency in health care

insurance carrier billing, several other subjects are impermissibly woven into the Initiative,

including:

* Requiring broad disclosure by insurance carriers of "all forms of

remuneration derived from rebates or other forms of incentive received as

the result of healthcare services or purchases of prescription drugs or

medical devices." (Initiative § 10-16-147(3) (emphasis added).) Because

many payments made to insurance carriers are related in some way to

healthcare services, prescription drugs, or medical devices, this catch-all

provision requires insurance carriers to disclose a large percentage of all

payments or other compensation they receive, regardless of whether or not

those activities are reasonably related to billing transparency.

* Provisions related to private contractual arrangements between insurance

carriers and healthcare providers. (Initiative § 6-20-303.) Limiting health

care providers' ability to negotiate and enter contracts with insurance

carriers is beyond the scope of "insurance carrier billing."

® Provisions allowing for adverse licensure action against an insurance

carrier, and allowing for the assessment of civil penalties. (Initiative § 10-

16-147(5).) These provisions are not connected to the purported subject of

"transparency" and instead directly impact an insurer's ability to hold a

state license. >

These additional subjects represent distinct and additional purposes of the Initiative, thus

violating the single-subject requirement. See C.R.S. § 1-40-106.5. Further evidencing the

Initiative's multiple subjects is the fact that the Initiative makes changes both to Title 6

(Consumer and Commercial Affairs) and to Title 10 (Insurance) of the Colorado Revised

Statutes. -

III. The title set by the Title Board is unfair and does not fairly express the true

meaning and intent of the proposed constitutional amendment.

The title set for the Initiative by the Title Board fails to fairly, clearly, and accurately

convey the central features of the measure because it does not:

* Explain that the initiative affects a very broad range of providers,

including many that may not commonly be considered to be "health care"

providers by the public, such as athletic trainers, massage therapists,

psychologists, social workers, and professional counselors. (Initiative § 6-

20-301(4).) Instead, the title refers only to "health care providers."

103589079 I 2

e Explain that the Initiative delegates rulemaking authority to the

Commissioner of Insurance. (Initiative § 10-16-147.)

• Explain the breadth of the disclosure requirement requiring each insurance

carrier to publish detailed information regarding all forms of remuneration

derived from rebates or other forms of incentive received as the result of

healthcare services or purchases of prescription drugs or medical devices.

(Initiative § 10-16-147(5).) This requirement is much broader than what is

specified in the title ("requiring health insurers to publicly disclose ... all

rebates or other incentives"), and imposes disclosure requirements that go

beyond the scope of the other items discussed in the title.

WHEREFORE, Objector respectfully requests that the Title Board set Initiative 119 for

rehearing pursuant to C.R.S. § 1-40-107(1).

DATED: February 14,2018.

s/ Thomas M. Ropers III

Thomas M. Rogers III

Dietrich C. Hoefner

LEWIS ROCA ROTHGERBER CHRISTIE LLP

1200 Seventeenth Street, Suite 3000

Denver, CO 80202

Phone:303-623.9000

Fax: 303.623.9222

Email: [email protected]

[email protected]

Attorneys for Objector

Address of Objector:

27484 CR 339, Buena Vista, CO 81211

103589079_1 3

CERTIFICATE OF SERVICE

I hereby certify that on February 14, 2018, a true and correct copy of this MOTION

FOR REHEARING was served on proponents via email as follows:

David Silverstein

557 17th Street, Suite 400

Denver, CO 80202

[email protected]

Andrew Graham ,

3464 S Willow

Denver, CO 80231

[email protected]

Martha Tierney

Tierney Lawrence LLC

225 East 16th Avenue, Suite 350

Denver, CO 80203

[email protected]

Proponents

s/ Robin A. Newcomer

103589079J 4

EXHIBIT A

103623417 1

STATE OF COLORADO

Colorado General Assembly

Colorado Legislative Council

200 East Colfax Avenue Suite 029

Denver, Colorado 80203-1716

Mike Mauer, Director

Legislative Council Staff

76.*"

Sharon L. Eubanks, Director

Office of Legislative Legal Services

Office of Legislative Legal Services

200 East Colfax Avenue Suite 091

Denver, Colorado 80203-1716

Telephone 303-866-3521

Facsimile 303-866-3855

TDD 303-866-3472

Telephone 303-866-2045

Facsimile 303-866-4157

Email: [email protected]

MEMORANDUM

To: David Silverstein and Andrew Graham

FROM: Legislative Council Staff and Office of Legislative Legal Services

DATE: January 23, 2018

SUBJECT: Proposed initiative measure 2017-2018 #119, concerning Transparency in

Section 1-40-105 (1), Colorado Revised Statutes, requires the directors of the Colorado

Legislative Council and the Office of Legislative Legal Services to "review and

comment" on initiative petitions for proposed laws and amendments to the Colorado

constitution. We hereby submit our comments to you regarding the appended

proposed initiative.

The purpose of this statutory requirement of the directors of Legislative Council and

the Office of Legislative Legal Services is to provide comments intended to aid

proponents in determining the language of their proposal and to avail the public of

knowledge of the contents of the proposal. Our first objective is to be sure we

understand your intent and your objective in proposing the amendment. We hope that

the statements and questions contained in this memorandum will provide a basis for

discussion and understanding of the proposal.

An earlier version of this proposed initiative, proposed initiative 2017-2018 #85, was

the subject of a memorandum dated December 19, 2017. Proposed initiative 2017

2018 #85 was discussed at a public hearing on December 21, 2017. The substantive

and technical comments and questions raised in this memorandum do not include

comments and questions on initiative 2017-2018 #85 not addressed in this revised

proposal. To the extent applicable, those comments and questions are hereby

incorporated.

Healthcare Insurance Carrier Billing

This initiative is one of a series identified as initiatives 2017-2018 #118 to #122. The

comments and questions raised in this memorandum do not include comments and

questions addressed in the memoranda for proposed initiatives 2017-2018 #118 and

#120 to #122, except as necessary to fully understand the issues raised by the revised

proposed initiative.

The major purposes of the proposed amendment to the Colorado Revised Statutes

appear to be:

1. To prohibit any contract between a health insurer and health care provider

issued, amended, or renewed on or after April 30, 2019, from including any

provision that restricts the ability of a provider or health insurer to provide

patients with the health care service charge information required to be

published by the proposal and to specify any such provision is void and

unenforceable;

2. To require health insurers to post on their websites and provide, in writing

upon request from a covered person:

a. The specific basis for determining the payment or reimbursement amount the

insurer provides to a health care provider rendering health care services to a

person covered under a plan issued by the insurer;

b. Items that appear as charges on an explanation of benefits or provider billing

statement that the carrier does not pay;

c. Detailed coverage and negotiated payment information by plan type and

participating provider; and

d. Prescription drug prices in a form and manner determined by the

commissioner.

3. To require health insurers to annually, or more frequently if required by the

commissioner of insurance, publish detailed information, in a form and

manner determined by the commissioner of insurance, regarding all forms of

remuneration derived from rebates or other forms of incentive received as the

result of health care services or purchases of prescription drugs or medical

devices;

s:\public\ballot\2017-2018cycle\2018rev&commemos\2017-2018 #119.docx

2

4. To require the commissioner of insurance, on or before April 30, 2019, to

adopt rules necessary to implement, administer, and enforce the requirements

imposed on health insurers and to thereafter revise the rules as necessary;

5. To define terms used in the measure; and

6. To specify that the measure takes effect on April 30, 2019.

Substantive Comments and Questions

The substance of the proposed initiative raises the following comments and questions:

1. Article V, section 1 (5.5) of the Colorado constitution requires all proposed

initiatives to have a single subject. What is the single subject of the proposed

initiative?

2. Sections 1 and 2 of the initiative proposal place provisions in article 20 of title

6, and section 3 adds a new provision in article 16 of title 10. All of the

provisions in these three sections relate to insurance carriers and should all be

placed in the same article and title. Have the proponents considered placing the

entire proposed initiative in article 16 of title 10?

3. The declaration of legislative purposes in section 1 of the initiative proposal is

identical to the purposes stated in initiatives 2017-2018 #118 and #120 to #122.

However, the substantive provisions of this initiative are more narrowly focused

on health insurance carriers. Would you consider narrowing section 1 of the

proposal to reflect only purposes related to health insurance carrier

information?

4. Section 6-20-302 defines various terms that are not actually used in part 3 of

article 20 of title 6. Would the proponents consider removing any term included

in the definitions section that is not used in section 6-20-303? For any terms

used in section 10-16-147, would the proponents consider moving the

definitions to section 10-16-147 or 10-16-102?

Technical Comments

The following comments address technical issues raised by the form of the proposed

initiative. These comments will be read aloud at the public meeting only if the

proponents so request. You will have the opportunity to ask questions about these

s:\public\ballot\20I7-20i8cycle\2018rev&commemos\2017-2018 #119.docx

3

comments at the review and comment meeting. Please consider revising the proposed

initiative as suggested below.

1. The amending clause for a new part, as in sections 1 and 2 of the proposed

initiative, should read "...add part 3 to article 20..instead of ". ..add part 3 of

article 20..." '

2. Both section 1 and section 2 of the proposed initiative add a new part 3 to

article 20 to title 6 of the Colorado Revised Statutes. These amending clauses

should be combined into a single amending clause, followed by the heading for

the new part 3. The purpose section should be renumbered as "6-20-302" and

moved to follow section 6-20-301. The following sections, 6-20-302 and 6-20

303, should be renumbered as 6-20-303 and 6-20-304, respectively.

3. The term "healthcare" is used throughout the purpose section of the proposed

initiative. However, throughout the Colorado Revised Statutes, the term is

spelled "health care." Consider changing all instances of "healthcare" to "health

care."

4. A reference to a subsection of the Colorado Revised Statutes should indicate

every element of the subsection referenced as well as the section in which that

subsection can be found. For example, the reference in 6-20-102 (5)(f) should,

presumably, be "To the extent not covered by subsections (5)(a) through (5)(e)

of this section..."

5. A measure should only include definitions for terms that are actually used in

the measure. It does not appear that the defined terms "CMS," "pharmacy," and

"third-party payer" are used in the measure, so they should be eliminated from

the definitions section.

6. Statutory text should immediately follow each headnote. For example, the text

in subsection (1) of section 6-20-303 should be moved to follow "rules." instead

of appearing on the next line.

7. Statutory text should immediately follow each headnote. For example, the text

in subsection (1) of section 6-20-303 should be moved to follow "contracts."

instead of appearing on the next line. The same is true regarding section

10-16-147 in section 3 of the measure.

8. The end of 10-16-147 (2)(a)(II) should end with a semi-colon instead of a

period to denote that the list of which it is a part continues in the next

subsection, (2)(b).


4

9. The first word following a new subsection should be capitalized, even if it is the

continuation of a sentence that begins in a previous subsection. For example,

the first word in 10-16-147 (2)(d), "prescription," should be capitalized.


Ballot Title Setting Board

Proposed Initiative 2017-2018 #1191

The title as designated and fixed by the Board is as follows:

A change to the Colorado Revised Statutes concerning a requirement that health care

insurers publish health insurance plan information, and, in connection therewith, requiring health

insurers to publicly disclose: 1) the basis for determining payment or reimbursement amounts to a

broad range of health care providers, 2) the items that appear as charges on an explanation of

benefits that the insurer does not pay, 3) detailed coverage and negotiated payment information by

plan type and provider, 4) prescription drug prices negotiated with providers, pharmacies,

distributors, and manufacturers, and 5) all health care related rebates or other incentives received;

authorizing penalties for violations; and prohibiting any contract between a health insurance plan

and a health care provider from restricting the publication of the required health insurance plan

information.

The ballot title and submission clause as designated and fixed by the Board is as follows:

Shall there be a change to the Colorado Revised Statutes concerning a requirement that

health care insurers publish health insurance plan information, and, in connection therewith,

requiring health insurers to publicly disclose: 1) the basis for determining payment or

reimbursement amounts to a broad range of health care providers, 2) the items that appear as

charges on an explanation of benefits that the insurer does not pay, 3) detailed coverage and

negotiated payment information by plan type and provider, 4) prescription drug prices negotiated

with providers, pharmacies, distributors, and manufacturers, and 5) all health care related rebates

or other incentives received; authorizing penalties for violations; and prohibiting any contract

between a health insurance plan and a health care provider from restricting the publication of the

required health insurance plan information?

Hearing February 7, 2018:

Single subject approved; staff draft amended; titles set.

Hearing adjourned 2:47p.m.

Rehearing February 21, 2018:

Motion for Rehearing denied except to the extent that the Board made changes to the titles.

Hearing adjourned 10:59 a.m.

1 Unofficially captioned "Transparency in Health Care Insurance Carrier Billing" by legislative staff for

tracking purposes. This caption is not part of the titles set by the Board.

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