It took 14 years, but the Colorado Department of Transportation finally received approval from the Federal Highway Administration to move ahead with the construction project on I-70. The project will cost about $1.2 billion dollars, and it will encompass about 10 miles of I-70 from Brighton Blvd. in Denver to Chambers Rd. in Aurora.

The project is known as the Central 70 project; it will demolish 56 homes and 17 businesses, most of which are located in the Elyria-Swansea neighborhoods of northeast Denver. Central 70 will widen the highway from six lanes to ten lanes when all is said and done; but a two mile stretch between Colorado Blvd. and Brighton Blvd. will be the most challenging, as Central 70 intends to replace the current highway with a below-grade highway. This is driven in large part by the currently existing viaduct, a 53 year old staple of northeast Denver. It is showing significant signs of deterioration, and must be replaced.

To alleviate risks of floods associated with the underground highway, CDOT has created a storm drainage project plan that will benefit the intended underground design; and on top, CDOT plans to build a 4-acre parkland cap. The park will conveniently lie next to Swansea Elementary School’s playground.

With approval from the FHA, CDOT is now able to move forward and request final bid solicitations from four groups of professionals vying for a public-private partnership. The candidate selected by CDOT will be responsible for designing, financing, building, maintaining and operating Central 70. The project will impose on project contractors a 20 percent local hiring target; pay and remodel parts of Swansea Elementary; provide financing related to air filtration improvement for some homes in the area; and contribute $2 million toward affordable housing projects. The 56 homeowners and renters, as well as the 17 businesses that will be displaced will receive relocation assistance, as well as just compensation for real estate owners.

Opposition groups have made several attempts to delay or halt the project, and although one lawsuit over federal air quality standards is still pending, reports suggest the project may begin as early as next year, and is estimated to require about 4 to 5 years to complete.

As one of Colorado’s oldest law firms, Hamilton Faatz, PC has the vast experience and knowledge in condemnation and eminent domain law to fight for you and your property. If your property is in the process of being condemned, our wisdom and experience will ensure you receive the full value of your property.

By: Refugio Perez
For complete article:

By: Andrew C. Iverson, Attorney at Law
303-830-0500 office

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) was enacted on August 21, 1996 to protect an individual’s healthcare information when that data is transmitted electronically.  It is commonly known that HIPAA applies to what are referred to as covered entities; entities that deal directly with Protected Health Information (“PHI”), such as health care providers, healthcare clearing houses and healthcare plans.  HIPAA governs conduct of these entities as they use PHI in their daily operations. However, it is not just covered entities that are impacted by HIPAA; persons and organizations that provide functions, activities and services to covered entities may meet the definition of a “business associate” triggering their involvement with HIPAA, which as of September 2014 has evolved to place more responsibility on the business associate, thus more liability as well.

The Business Associate:

A business associate is a person or entity, not part of a covered entity that performs or provides certain functions or activities on behalf of or to a covered entity.  When these functions and activities involve the business associate performing what would otherwise be done by the covered entities, the Privacy Rule of HIPAA dictates that the business associate and covered entity must enter into a contract where the business associate agrees to safeguard the PHI provided to it by the covered entity.  A contract is required, because the safeguard assurances must be in writing pursuant to HIPAA.  Recent amendments to HIPAA provide that business associates are now more likely to be directly liable under HIPAA for a violation, thus requiring that business associates pay close attention not only to the Privacy Rule, but also the Security Rule of HIPAA.  The threshold determination of whether a person or organization is a business associate under HIPAA must be determined.  

Common areas of functions and activities performed by business associates include claims processing and administration; data analysis; benefit management; and billing for covered entities.   Services provided to a covered entity may include legal, actuarial, accounting, consulting, data aggregation, administrative, management, accreditation or financial services.  However, simply because a function, activity or service falls into one of these categories does not mean the function or service meets the definition of a business associate.  It only qualifies as a business associate when its function, activity or service involves access to PHI for use or disclosure by the business associate.  Often the service provided is one that the covered entity would otherwise perform, making the determination more clear that HIPAA applies.  Naturally, there are business associates that do not meet the HIPAA definition to require a contract.  For example, a carpet cleaning service would not require a contract, because the cleaning of carpets does not require the use or disclosure of PHI from the covered entity.  Even when a business associate may seemingly not require a contract with the covered entity, a contract may be required.  For instance, if the function, activity or service is being performed on the covered entity’s premises, it could be considered part of the workforce of the covered entity, giving rising to whether a contract is required.  

HIPAA Amendment – The Afermath :

Beginning in 2013, HIPAA was amended, pursuant to HITECH.  In addition to the contract mentioned above for business associates, HIPAA now requires business associates to comply with both the Privacy and Security Rules.  HIPAA is now directly applicable to business associates, much like it has been to covered entities.  Business associates are now directly liable for impermissible uses and disclosures of PHI.  In short, business associates now must develop privacy and security safeguards to protect PHI.  The problem that arises is that smaller and less sophisticated business associates have not and may not develop these safeguards and in depth analysis to implement the requirements of the Privacy and Security Rules.  Despite the commentary of the amendments to HIPAA recognizing this phenomenon, these business associates will be required to comply.  On some level this seems like a substantial understatement about compliance, but it is accurate about the nature of many business associates of covered entities.  

To avoid penalties and fines for not complying with HIPAA, an accurate determination of whether you or your organization is a business associate is imperative.  If you or your organization qualifies as a business associate, further analysis of your business practices must be done to develop safeguards required by HIPAA, and to develop policies and procedures to protect PHI, for self-reporting for unauthorized disclosures, and designating specific persons for security protocols.  While this is an involved process, the assistance of legal counsel can be valuable component of developing the necessary security, privacy, self-reporting and protocols required by HIPAA.  Please feel free to contact me to discuss your needs and concerns regarding healthcare compliance.

October 22, 2014

The federal gift and estate tax rules have changed significantly in recent years.  The unified exemption has increased to $5 million indexed for inflation.  Hence, you may now transfer the exemption amount of $5 million+ during your life or at death without incurring a gift or estate tax. As under prior law, to the extent you use some or all of your exemption for transfers during your life (gifts), your estate’s exemption will be reduced by that amount.  Also, for married couples, the unused portion of a deceased spouse’s exemption may be available to the surviving spouse (portability). For example, if one spouse only uses $3 million of his or her exemption, the $2 million+ unused amount is potentially available to the surviving spouse, giving her or him the potential of a $7 million+ exemption.

While many think the new rules mean they no longer have to be concerned about these taxes, this may not necessarily be the case. First, portability is not available unless an estate tax return is actually filed for the deceased spouse’s estate and an election is made on that return.  Further, there are certain situations where it may be better not to elect portability.  Finally, portability may not be available to the surviving spouse if he or she remarries.

The new rules establish higher transfer tax exemption levels than in the past and create some planning opportunities. However, you need to carefully plan to take advantage of those opportunities and carefully draft your documents to provide flexibility wherever possible.  We are available to help you navigate the estate tax rules and counsel you regarding your estate planning objectives.

By: James H. Marlow

Can I Terminate Employees Using Marijuana?

Do your employees smoke or use marijuana products? If so, you can terminate them, but you better have the proper policies and procedures in place? If you have employees using marijuana either on-duty or most likely during off-duty hours, those employees may believe their use is protected as lawful after-hours activity off your premises, pursuant to Colorado Revised Statute § 24-34-402.5 (“Lawful Activity Act”). Interestingly, this statute was enacted in 1990 to protect cigarette smokers and has been challenged by an employee of Dish Network, which case is now headed to the Colorado Supreme Court. With Colorado legalizing marijuana for general consumption, it is imperative that you carefully define your employment practice policies and procedures. This is necessary to avoid confusion and other legal issues that could get you sued. Confusion often arises because legalization was decriminalized only at the State level. Marijuana use is not like alcohol use.

Like many employers, you may have employment policies and procedures in place; however they may not be adequate to protect you. Currently, there is not an adequate means of testing the level (nanograms of THC) of an employee being under the influence that does not create significant exposure to liability. Testing that can measure the level of THC exposes you to significant liability of an employee to sue you for illnesses and invasion of privacy. Negotiating around these issues can be treacherous, but a path created, involving random testing and reasonable suspicion, to protect you and allow the termination of employees for marijuana use.

Will Medical Marijuana Be Protected Under the ADA – The Colorado Supreme Court May Tell Us?

Adding to the complication of the legalized use of marijuana for employers, Colorado has both medical use and legalized use of marijuana laws. Medical marijuana has not been repealed. Since the Dish Network case arose under the State Constitution decriminalizing medical marijuana use, it is anticipated that decision will address issues related to medical use and what, if any, protected classes an employee may be included in under the ADA. The State Constitution expressly provides for medical marijuana in situation of a “debilitating medical condition.” However, the determination of that condition and the restriction imposed on a qualified medical professional are very loose, making it easy to obtain a medical marijuana card. While the Court has yet ruled on the matter, issues involving a debilitating medical condition arising to the level of protection under the ADA are extremely likely to arise. IF a protected class is created, the conundrum of what would constitute a reasonable accommodation is sure to be the focus of litigation in the future. Other issues that may come into play could involve the federal Controlled Substance Act and its impact on State law, especially since the DEA does not permit a licensed physician to prescribe marijuana.

By: Andrew Iverson

As a result of changes in tax law enacted in late 2010, the federal estate tax and gift exemption is now $5,340,000. If a person’s estate exceeds his or her unused exemption, it is currently taxed at a 40% rate. Since each spouse (today, that term includes a same-sex partner if they were married in a state which recognizes same-sex marriages) has his or her own exemption, it is possible for a married couple to design their estate plan to shield $10,680,000 in 2014 from estate taxes.

The new law also introduced a new concept called “portability,” which allows the unused estate tax exemption of the first spouse to die to be claimed by the surviving spouse. While this may make the planning process simpler for some, for others it might be better to design a plan to take advantage of each exemption without relying on portability, since (1) the unused exemption may not be enough to eliminate the surviving spouse’s estate taxes if the value of his or her assets grows substantially or the estate tax exemption is reduced in future years, (2) the unused exemption could be lost if the surviving spouse remarries, and (3) portability only applies to the unused estate tax exemption, not other taxes. Nevertheless, portability can be a significant benefit to married couples in many cases.

In order to establish the unused exemption amount available to the surviving spouse, portability must be elected on a timely filed estate tax return, even if no tax is due. If the election is not made, it is lost. For decedents dying in 2011 through mid-2013, that time has passed. However, on January 27, 2014, the Internal Revenue Service issued Revenue Procedure 2014-18, extending the time to elect portability to December 31, 2014 for decedents dying in 2011 and later years where an estate tax return was not otherwise required to be filed. Hence, there is still time for those estates to elect portability. Since some of those surviving spouses could ultimately have an estate which is greater than his or her own exemption, it is important to seriously consider taking advantage of this renewed opportunity to elect portability.

DENVER POST - Back in 1999, it seemed like a great idea — recycling concrete from the old Stapleton airport runways for use in the new Stapleton community.

Now, maybe not so great an idea. Developer Forest City Stapleton is on the losing end of a $794,000 court judgment that hinged in part on groundwater problems caused by recycled concrete.

Attorneys said the case may have broad implications for Stapleton homes afflicted with excessive groundwater.

Like many of his Stapleton neighbors, Tad Rogers found that groundwater was accumulating around his house's foundation. His basement sump pump was running nearly full time to pump the water away from the home.

The quantity of discharged water was so great — as much as an estimated 500,000 gallons a year — that it killed his lawn.

"His yard just became a swamp," said Rogers' attorney, Ashleigh Mason of Greenwood Village-based firm Hamilton Faatz, PC.

But engineers hired for the case found an even bigger problem. The foundation's drainage system, designed to capture the excess groundwater, was becoming clogged with calcite, a carbonate mineral. The calcite was coming from recycled concrete used as a base under Stapleton's streets, engineers said.

When redevelopment launched four years after Stapleton International Airport's last flight in 1995, recycling vast amounts of concrete from runways and tarmacs was touted as an environmental benefit that reflected the new community's green orientation.

Master developer Forest City Stapleton certainly had plenty of the material on hand. The 6.5 million tons of airport concrete would have been enough to fill Sports Authority Field at Mile High more than six times.

Some was used for Stapleton roadbeds; other material ended up at different metro-area construction projects. But it was the use in Stapleton roads that gave rise to Rogers' lawsuit.

A Denver District Court jury ruled several weeks ago that Forest City Stapleton breached an implied warranty that Rogers' home would be habitable. The jury awarded Rogers $242,000 in actual damages and $552,000 for inconvenience and emotional distress.

"We disagreed with the verdict and are exploring our options," said Forest City spokesman Tom Gleason. "As a result, it would not be appropriate for me to offer any more comment at this time."

If Forest City appeals the ruling, the subsequent appellate decision could serve as a precedent that would apply to similar future lawsuits.

In a 2010 survey conducted by Stapleton United Neighbors, 149 homeowners reported having groundwater problems and 415 were concerned about the issue.

Denver District Court records show that to date, only three Stapleton homeowners including Rogers have sued Forest City for damages caused primarily by excessive water. In one of the cases, the homeowner lost. In another, a settlement with undisclosed terms was reached.

But Rogers' case was the first to base its damage claims on recycled concrete.

Rogers noted that there apparently is no permanent fix for his home's problems. With calcite continuing to leach out of the concrete roadbeds, he is faced with the prospect of replacing the foundation drainage system every few years because of mineral buildup.

Steve Raabe: 303-954-1948, or

Results from 2010 stapleton united neighbors survey
Respondents to survey: 647
Concerned about groundwater issues: 415
Known water problems: 149
Sump pump runs daily: 114



2016 Annual Open House!

Yes it snowed in May, so what a perfect time to celebrate our annual staff Holiday party!!
We are grateful to have such a dedicated and hardworking staff.

We had a wonderful time at our Annual Holiday Open House. We thank everyone for coming out and hope you have a wonderful holiday and Happy New Year.

In appreciation of our wonderful clients, we had a great turn out on December 5, 2013 at our Holiday open house.

2012 Annual Law Update
Join us for breakfast as our attorneys discuss how recent changes in the law may impact you . . .

Hamilton Faatz, PC has been proud to support the University of Denver Daniels College of Business 2011-2012 Voices of Experience Speaker Series. A review of the 2011-2012 speakers and a link to view videos of each speaker can be found here.

Hamilton Faatz, PC is a Greenwood Village, Colorado law firm practicing in the areas of Estate Planning (Wills and Trusts), Business Law, Organizational Formation, Probate Administration, Real Estate Transactions and Development, Construction Law, Employment and Labor Law, Construction Defect Litigation, and Civil Trials as well as many others.

We serve the entire state of Colorado including: Greenwood Village, Centennial, Denver, Aurora, Longmont, La Jara, Alamosa, Arapahoe County, Denver County, Jefferson County, Englewood, Colorado Springs, Castle Rock, Broomfield, and Arvada.