Jun 3, 2022

Ellen K. Giarratana previously served as Litigation Director at CCLP, where she advocated for the equitable enforcement of legislation, representing community members in litigation in our four focus areas (food, health, income, housing) while working to improve racial equity.

Recent articles

CCLP’s 2024 legislative wrap-up, part 2

CCLP's 2024 legislative wrap-up focused on expanding access to justice, removing administrative burden, supporting progressive tax and wage policies, preserving affordable communities, and reducing health care costs. Part 2/2.

CCLP’s 2024 legislative wrap-up, part 1

CCLP's 2024 legislative wrap-up focused on expanding access to justice, removing administrative burden, supporting progressive tax and wage policies, preserving affordable communities, and reducing health care costs.

CCLP testifies in support of Clean Slate updates

Bethany Pray, CCLP’s Chief Legal and Policy Officer, provided testimony in support of House Bill 24-1133, Criminal Record Sealing & Expungement Changes. CCLP is in support of HB24-1133, as it is one of our priority bills.

Public benefits theft after the legislative session

by | Jun 3, 2022

Each year, dozens of Coloradans are criminally charged with Medicaid fraud. The prosecutions are not just limited to those who lie to receive public benefits for which they know they are not eligible. Defendants often include those facing poverty who may have already been receiving benefits, who provide misinformation to the counties through the application or recertification process.

The truth is, applying for public assistance is complicated, particularly for non-English speakers, and it involves a mountain of paperwork and documentation to demonstrate eligibility. Making matters more complicated, eligibility differs for each type of public benefit individuals apply for, such as Medicaid, Supplemental Nutritional Assistance Program (SNAP), and Temporary Assistance for Needy Families (TANF). What is sufficient documentation for one program may not cut it for another. As a result of these complexities, even those who may be eligible for some type of Medicaid program may inadvertently provide incorrect estimates of their monthly income or inaccurate reporting of their household composition for another benefit.

When a county discovers that an individual has provided misinformation to receive benefits, it may refer the case to the local district attorney to prosecute for theft. The grade of the theft offense differs based upon the value of the property stolen. Petty theft, for example, includes anything less than $50 and carries a maximum 6-month sentence in prison while a class 4 felony for a value between $20,000 to $100,000 carries a 2-to-6-year sentence in prison. Any theft conviction also requires that the defendant pay restitution back to the government and includes a host of collateral consequences.

In the case of Medicaid theft, the Colorado Supreme Court had the opportunity last year to determine whether the value is based on the total amount of benefits paid to the recipient or the difference between the total paid and the amount the defendant was actually eligible for.

Unfortunately, the Court held that all benefits a defendant receives through submitting false information counts towards the value calculation of property stolen. In other words, even if the defendant was entitled to the benefits that she received despite the false information, she is still criminally liable for the full amount of benefits paid by the state. This conclusion will always result in harsher penalties for those found guilty of theft.

CCLP and the National Health Law Program (NHeLP) did not agree with the Court’s holding and filed an amicus brief alongside the defendant’s petition for rehearing. Our amicus emphasized the difficulties in accurate and timely reporting of changed circumstances, the flexibility our federal government provides to beneficiaries in navigating the Medicaid program, and, perhaps most importantly, the fact that Medicaid is an entitlement for eligible individuals.

Because Medicaid is an entitlement, the benefits belong to the beneficiary and cannot be “taken” from the government. Our amicus also stressed that criminal prosecutions against eligible individuals creates a chilling effect, ultimately deterring Coloradans from enrolling in and fully benefiting from Medicaid.

Despite our efforts, the Court denied the petition for rehearing, with Justices Berkenkotter, Márquez, and Hart dissenting. Disappointed with the result, we sought a legislative fix at the capitol, taking the lead from Justice Berkenkotter’s dissenting opinion. In her dissent, Justice Berkenkotter noted how different public benefits theft is from the type of theft typically prosecuted, and she cited to other state laws that distinguish it. She then urged Colorado to adopt a similar approach.

House Bill 22-1224 and Section 10 of HB22-1257, now both signed into law, do just that. Prior to session, CCLP requested that the Commission on Criminal and Juvenile Justice (CCJJ) consider adding public benefits theft as a unique crime separate and apart from theft to the bill it was putting forward. The CCJJ agreed to include the narrow issue in the supreme court’s decision – calculating value – while Representatives Tipper and Soper and Senadora Gonzales sponsored a separate bill to address intent for these cases.

Together, these laws ensure fairer prosecutions of people receiving public benefits. Specifically, these laws prevent prosecutors from pressing charges against individuals who simply make a mistake or have difficulty navigating the public benefits process. For those that do get prosecuted, the value of the theft will be limited to the money they received beyond that to which they were entitled. CCLP is grateful to the CCJJ and the bill sponsors for swiftly addressing this issue, so that no other beneficiary will find themselves with an unnecessary criminal record.

Read our amicus in the CCLP resource library here.

Learn more about HB22-1224 on our Legislative Priorities page.

Recent articles

CCLP’s 2024 legislative wrap-up, part 2

CCLP's 2024 legislative wrap-up focused on expanding access to justice, removing administrative burden, supporting progressive tax and wage policies, preserving affordable communities, and reducing health care costs. Part 2/2.

CCLP’s 2024 legislative wrap-up, part 1

CCLP's 2024 legislative wrap-up focused on expanding access to justice, removing administrative burden, supporting progressive tax and wage policies, preserving affordable communities, and reducing health care costs.

CCLP testifies in support of Clean Slate updates

Bethany Pray, CCLP’s Chief Legal and Policy Officer, provided testimony in support of House Bill 24-1133, Criminal Record Sealing & Expungement Changes. CCLP is in support of HB24-1133, as it is one of our priority bills.

HEALTH:
HEALTH FIRST COLORADO (MEDICAID)

To maintain health and well-being, people of all ages need access to quality health care that improves outcomes and reduces costs for the community. Health First Colorado, the state's Medicaid program, is public health insurance for low-income Coloradans who qualify. The program is funded jointly by a federal-state partnership and is administered by the Colorado Department of Health Care Policy & Financing.

Benefits of the program include behavioral health, dental services, emergency care, family planning services, hospitalization, laboratory services, maternity care, newborn care, outpatient care, prescription drugs, preventive and wellness services, primary care and rehabilitative services.

In tandem with the Affordable Care Act, Colorado expanded Medicaid eligibility in 2013 - providing hundreds of thousands of adults with incomes less than 133% FPL with health insurance for the first time increasing the health and economic well-being of these Coloradans. Most of the money for newly eligible Medicaid clients has been covered by the federal government, which will gradually decrease its contribution to 90% by 2020.

Other populations eligible for Medicaid include children, who qualify with income up to 142% FPL, pregnant women with household income under 195% FPL, and adults with dependent children with household income under 68% FPL.

Some analyses indicate that Colorado's investment in Medicaid will pay off in the long run by reducing spending on programs for the uninsured.

FOOD SECURITY:
SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM (SNAP)

Hunger, though often invisible, affects everyone. It impacts people's physical, mental and emotional health and can be a culprit of obesity, depression, acute and chronic illnesses and other preventable medical conditions. Hunger also hinders education and productivity, not only stunting a child's overall well-being and academic achievement, but consuming an adult's ability to be a focused, industrious member of society. Even those who have never worried about having enough food experience the ripple effects of hunger, which seeps into our communities and erodes our state's economy.

Community resources like the Supplemental Nutrition Assistance Program (SNAP), formerly known as Food Stamps, exist to ensure that families and individuals can purchase groceries, with the average benefit being about $1.40 per meal, per person.

Funding for SNAP comes from the USDA, but the administrative costs are split between local, state, and federal governments. Yet, the lack of investment in a strong, effective SNAP program impedes Colorado's progress in becoming the healthiest state in the nation and providing a better, brighter future for all. Indeed, Colorado ranks 44th in the nation for access to SNAP and lost out on more than $261 million in grocery sales due to a large access gap in SNAP enrollment.

See the Food Assistance (SNAP) Benefit Calculator to get an estimate of your eligibility for food benefits.

FOOD SECURITY:
SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC)

Every child deserves the nutritional resources needed to get a healthy start on life both inside and outside the mother's womb. In particular, good nutrition and health care is critical for establishing a strong foundation that could affect a child's future physical and mental health, academic achievement and economic productivity. Likewise, the inability to access good nutrition and health care endangers the very integrity of that foundation.

The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) provides federal grants to states for supplemental foods, health care referrals, and nutrition information for low-income pregnant, breastfeeding and non-breastfeeding postpartum women and to infants and children up to age five who are found to be at nutritional risk.

Research has shown that WIC has played an important role in improving birth outcomes and containing health care costs, resulting in longer pregnancies, fewer infant deaths, a greater likelihood of receiving prenatal care, improved infant-feeding practices, and immunization rates

Financial Security:
Colorado Works

In building a foundation for self-sufficiency, some Colorado families need some extra tools to ensure they can weather challenging financial circumstances and obtain basic resources to help them and their communities reach their potential.

Colorado Works is Colorado's Temporary Assistance for Needy Families (TANF) program and provides public assistance to families in need. The Colorado Works program is designed to assist participants in becoming self-sufficient by strengthening the economic and social stability of families. The program provides monthly cash assistance and support services to eligible Colorado families.

The program is primarily funded by a federal block grant to the state. Counties also contribute about 20% of the cost.

EARLY LEARNING:
COLORADO CHILD CARE ASSISTANCE PROGRAM (CCCAP)

Child care is a must for working families. Along with ensuring that parents can work or obtain job skills training to improve their families' economic security, studies show that quality child care improves children's academic performance, career development and health outcomes.

Yet despite these proven benefits, low-income families often struggle with the cost of child care. Colorado ranks among the top 10 most expensive states in the country for center-based child care. For families with an infant, full-time enrollment at a child care center cost an average of $15,140 a year-or about three-quarters of the total income of a family of three living at the Federal Poverty Level (FPL).

The Colorado Child Care Assistance Program (CCCAP) provides child care assistance to parents who are working, searching for employment or participating in training, and parents who are enrolled in the Colorado Works Program and need child care services to support their efforts toward self-sufficiency. Most of the money for CCCAP comes from the federal Child Care and Development Fund. Each county can set their own income eligibility limit as long as it is at or above 165% of the federal poverty level and does not exceed 85% of area median income.

Unfortunately, while the need is growing, only an estimated one-quarter of all eligible children in the state are served by CCCAP. Low reimbursement rates have also resulted in fewer providers willing to accept CCCAP subsidies.