Tag Archives: Judicial Notice

Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Filed under Administrative, Evidence, Government

Alpenhof, LLC, v. City of Ouray, 2013COA9 (January 17, 2013)

Nature causes disasters; humans just fail to prevent them. Case in point: Hurricane Katrina. So, when Ouray reviewed the plans of a Developer to build in an area prone to flooding from a diverted natural waterway, it found the risk to be a “geologic condition” or a “natural hazard.” They required Developer to take significant mitigation measures to which Developer objected and then challenged in court under CRCP 106. The court of appeals rejected Developer’s challenge because Ouray had the authority and discretion to enforce a code requiring flood mitigation to preserve the public’s health, safety and welfare, even though some risk came from a structure built by Ouray. As a matter of municipal litigation practice, the court also made a specific point about not taking judicial notice of ordinances not included in the record. Ouray’s denial of Developer’s application was upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0500-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8803&courtid=1

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Filed under Administrative, Government