2016 Legislative Update
Wednesday, March 30, 2016
Posted by: Susan Ferrer
See all bills signed or vetoed by Gov. Pence: http://www.in.gov/gov/2016billwatch.htm
Issues dominating this year's legislative session included a road funding strategy for Indiana's crumbling infrastructure, drug intervention and sentencing, Indiana's standardized testing system for elementary-aged students and governing of police video. Other issues of concern this session for the ISBA that did not pass were once again a tax-on-services threat as well as a restructuring of Indiana’s administrative law proceedings (that topic, however, will be studied this summer).
Some of the other bills to pass this session and make it to the governor’s desk for a signature included:
Business entities; series limited liability. Makes various changes to the business and other association law, including the following: (1) Requires that an application to reserve or renew a reservation of a name and a notice of transfer of a reserved name must be filed with the secretary of state electronically and makes the corresponding changes to the fees. (2) Establishes requirements concerning plans or filed documents that include terms that are dependent on facts objectively ascertainable outside the plan or filed document for limited liability partnerships, limited partnerships, nonprofit corporations, and limited liability companies. (3) Provides that the name of a limited liability company must be distinguished from the name of any limited liability company or other business entity reserved or organized under the laws of Indiana or authorized to transact business in Indiana. (Current law requires that the name must be distinguished from any limited liability company or other business entity reserved or organized under the laws of Indiana or qualified to transact business as a foreign limited liability company in Indiana.) (4) Allows limited liability companies to organize as series limited liability companies. (5) Adds a fee for filing: (A) articles of organization for a master limited liability company; (B) applications for certificate of authority series; and (C) articles of designation.
Construction permits and regulation. Provides the following: (1) Provides deadlines for the state department of health (department) to issue construction permits and conduct plan reviews for certain projects. (2) Requires the department to issue a construction permit without further review, if the department fails to provide notice or a complete plan review within the time required by statute. (3) Allows a person to apply for a construction permit from the department and a design release from the division of fire and building safety (division) by submitting a single application to the division. (4) Limits subsequent reviews to revisions and required corrections. (5) Requires the fire protection and building safety commission (commission) to adopt policies and rules to promote preservation and use of downtown commercial buildings located within designated historic districts.
Senior judges, judges pro tempore, and oaths. Allows: (1) a senior judge; or (2) a judge pro tempore; serving in a county that has a probate court, a circuit court, or a superior court judge to, with the consent of the judge of the probate court, circuit court, or a superior court in the county, sit as the judge of the consenting judge's court in any matter as if the senior judge or judge pro tempore were the elected judge or appointed judge of the court. Provides that a judge pro tempore may serve as a judge of a court regardless of whether the appointed or elected judge of the court is present and available in the building that contains the court.
Court motion clerk pilot program. Permits the Indiana judicial center to establish a circuit and superior court motion clerk pilot program (pilot program) to provide assistance to courts with preparing orders for complex motions. Provides that the judicial center shall administer the pilot program. Requires the committee to receive reports concerning the pilot program, and allows the committee to make recommendations and to propose legislation concerning the pilot program.
Juvenile law. Allows an adult court having jurisdiction over a minor charged with an offense requiring the automatic transfer of jurisdiction to the adult court to withhold judgment and transfer jurisdiction to the juvenile court for adjudication and disposition if the minor is convicted of an offense, but not convicted of an offense requiring the automatic transfer of jurisdiction to the adult court. Allows an intake officer to impose conditions upon the release of a child who was not taken into custody under an order of the court. Requires the juvenile court to hold a detention hearing within 48 hours if an intake officer imposes conditions of release upon a child.
Criminal law matters. Provides that a person may be convicted of possession with intent to manufacture or deliver a controlled substance without additional evidence of intent to manufacture or deliver if the person possesses more than a specified quantity of the controlled substance. Specifies that the fact that an individual has attended a syringe exchange program may not form any part of a probable cause or reasonable suspicion determination. Permits a person placed on home detention as a condition of pretrial release to earn one day of good time credit for every four days served on pretrial home detention.
Prosecutions for rape and criminal deviate conduct. Specifies that certain exceptions to the statute of limitations for rape as a Level 3 felony also apply to rape as a Class B felony (for crimes committed before July 1, 2014). Provides that a prosecution for criminal deviate conduct as a Class B felony for an offense committed before the crime was repealed on July 1, 2014, that would otherwise be barred may be commenced not later than five years after the earliest of the date on which: (1) the state first discovers evidence sufficient to charge the offender with the offense through DNA analysis; (2) the state first becomes aware of the existence of a recording that provides evidence sufficient to charge the offender with the offense; or (3) a person confesses to the offense. Provides that state educational institution and approved postsecondary educational institution student advocate office employees and volunteers who provide services to certain victims have testimonial privilege regarding confidential victim information.
Drug offenses. Specifies that Level 2 controlled substance offenses are nonsuspendible if: (1) the offense involves methamphetamine or heroin; and (2) the person has a prior felony conviction for dealing in certain controlled substances.
Guardianship and adult protective services report. Urges the legislative council to assign to the appropriate committee a study of the visitation, communication, and interaction with a protected person. Requires the family and social services administration (FSSA), in cooperation with the Indiana prosecuting attorneys council (IPAC), to prepare and submit a report to the legislative council before December 1, 2016, concerning adult protective services. Specifies that the report must include: (1) an estimation of appropriate staffing levels necessary to efficiently and effectively manage the investigations of reports of matters related to the abuse, neglect, or exploitation of endangered adults; (2) identification of: (A) the circumstances that should result in emergency placement in the case of an adult protective services investigation; (B) the appropriate types of emergency placements based on those circumstances; and (C) strategies for improving emergency placement capabilities; (3) consideration of the benefits and cost of establishing a centralized intake system for reports of matters related to the abuse, neglect, or exploitation of endangered adults; (4) a statement of consistent standards of care for endangered adults; (5) a determination of the appropriate levels of training for employees who are involved in providing adult protective services; (6) a draft of a cooperative agreement between the FSSA and IPAC that sets forth the duties and responsibilities of the agencies and county prosecuting attorney offices with regard to adult protective services; and (7) Performance goals and accountability metrics for adult protective services to be incorporated in contracts and grant agreements. Provides that the FSSA shall present the report to the state budget committee.
Securities and financial protection. Defines "financially endangered adult" as an individual who is: (1) at least 65 years of age; or (2) at least 18 years of age and is incapable, by reason of certain mental or physical incapacities, of managing the individual's property. Defines "qualified individual" as an individual associated with a broker-dealer who serves in a supervisory, compliance, or legal capacity as part of the individual's job. Provides that "protective agencies" refers to the adult protective services unit and the securities commissioner. Requires that a qualified individual who has reason to believe that financial exploitation of a financially endangered adult has occurred, has been attempted, or is being attempted shall make a report and notify the protective agencies. Allows a qualified individual to refuse a request for disbursement of funds from an account: (1) owned by a financially endangered adult; or (2) of which a financially endangered adult is a beneficiary or beneficial owner; if the qualified individual has reason to believe that the requested disbursement will result in financial exploitation of the financially endangered adult. Establishes requirements for notification by a broker-dealer or qualified individual if a qualified individual refuses a request for disbursement of funds. Provides for expiration of the refusal of disbursement. Provides broker-dealers and qualified individuals certain immunity from administrative or civil liability. Allows broker-dealers to provide to certain entities access to or copies of records relevant to a suspected financial exploitation.
Underground petroleum storage tanks. Provides for the underground petroleum storage tank excess liability trust fund to be referred to as the "ELTF". Eliminates a provision stating that fees and penalties paid in connection with underground petroleum storage tanks are a source of funds for the ELTF. (Under IC 13-23-6-2 and IC 13-23-12-4, those fees and penalties are deposited in the underground petroleum storage tank trust fund, not in the ELTF.) Repeals IC 13-23-7-9, a provision under which knowingly or intentionally making a material misstatement in connection with an application for financial assistance from the ELTF is a Level 6 felony. (IC 13-23-9-6, a nearly identical provision, is not repealed.) Eliminates the authority of the department of revenue to impose a lien on the property of an underground storage tank owner for failure to pay annual registration fees. Eliminates certain conditions for the payment of claims from the ELTF and limits on the amounts that can be paid from the ELTF under certain circumstances, and provides instead that the administrator of the ELTF shall pay claims that are: (1) for costs related to "eligible releases"; (2) submitted by an "eligible party"; and (3) submitted in accordance with certain requirements. Provides that the administrator of the ELTF: (1) shall pay claims according to a certain priority payment system if the balance in the ELTF drops below $25,000,000; and (2) shall cease paying claims if the balance in the ELTF becomes insufficient to pay ELTF claims and necessary personnel and administrative expenses. Prohibits the administrator of the ELTF from paying: (1) more than $2,500,000 from the ELTF per eligible release; or (2) more than $10,000,000 from the ELTF per fiscal year. Provides that the total amount otherwise available from the ELTF in connection with an eligible release shall be reduced by a "deductible amount" of $15,000 and, if applicable, the sum of: (1) all annual registration fees for underground storage tanks (USTs) located at the site of the eligible release that were due in 1991 or later and not paid in the year they were due; and (2) an additional $1,000 for each UST annual registration fee not paid in the year it was due. Revises provisions concerning the procedure for submitting and paying claims for payment from the ELTF. Requires the department of environmental management, using money from the ELTF, to arrange for an independent actuarial study examining the future obligations and fiscal sustainability of the ELTF once every five years.
Environmental management matters. Eliminates references to certain administrative rules that have been repealed. Revises the definition of the term "land application". Provides that the terms "land application operation" and "solid waste" apply to the chapter of the law on wastewater management. Changes the conditions under which the commissioner of the department of environmental management (department) may revoke a temporary variance from an environmental administrative rule. Revises a provision concerning the type of: (1) NPDES permit applications; and (2) applications to renew or modify NPDES permits; for which an antidegradation review is required. Requires the environmental rules board (board) to adopt rules concerning land application of solid waste and industrial waste products. Repeals a section providing for the expiration of the law on mercury switches in end of life vehicles. Changes, from December 31, 2015, to May 1, 2016, the date by which the commissioner of the department is required to submit a report summarizing the information obtained from recycling activity reports concerning the previous calendar year. Amends the law concerning the department's annual report on the implementation of the electronic waste law to provide that the report must discuss the total weight of covered electronic devices recycled during the previous program year (rather than fiscal year). Provides that the statute concerning environmental legal actions does not apply to an action brought by the state arising from a site considered a high priority site or the site of a release considered a high priority release under the rules of the board concerning priorities in the selection of hazardous substance response sites. Specifies that, under the law concerning rates and charges established by regional water, sewage, and solid waste districts, just and equitable rates and charges are those that give due consideration to the interests of the ratepayers.
Release of identifying adoption information. Repeals, effective July 1, 2018, provisions applicable to adoptions finalized before January 1, 1994, that prohibit the release of identifying adoption information unless a consent to release the information is on file. Provides that, beginning July 1, 2018, identifying adoption information may be released unless a nonrelease form is on file, regardless of when the adoption was filed. (Under current law, this provision applies only to adoptions filed after December 31, 1993.) Replaces a nonrelease form with a contact preference form. Provides that a nonrelease form submitted before July 1, 2018, remains in effect unless the form lapses.
Parenting coordinators. Urges the legislative council to assign to the appropriate committee a study of the use of parenting coordinators in resolving custody and parenting conflicts.
Terminating the parent-child relationship. Allows a parent who is the victim of an act of rape from which a child was conceived to file a petition to terminate the parent-child relationship between the child and the alleged perpetrator of the act of rape. Requires a court to terminate the parent-child relationship if the court finds: (1) by clear and convincing evidence that the alleged perpetrator committed an act of rape against the parent who filed the petition to terminate the parent-child relationship and that the child was conceived as a result of the act of rape; and (2) that terminating the parent-child relationship would be in the best interests of the child. Prohibits a parent who is at least 18 years of age at the time the act of rape occurred from filing a petition more than 180 days after the birth of the child. Prohibits a parent who is less than 18 years of age at the time the act of rape occurred from filing a petition more than 2 years after reaching the age of 18. Requires a court to stay the termination of the parent-child relationship proceedings if the court receives a notice from the department of child services that the child is the subject of a pending child in need of services petition.
No contact and protective orders and battery. Allows a petition to be filed with the juvenile court to order a person to refrain from contact with a member of a foster family home. Makes battery a Class A misdemeanor instead of a Class B misdemeanor if the offense is committed against a member of a foster family home by a person who is not a resident of the foster family home if the person who committed the offense is a relative of a person who lived in the foster family home at the time of the offense. Makes the offense a Level 6 felony if it results in bodily injury to a member of the foster family. Removes the sentencing enhancement for battery committed against a family or household member in the presence of a child from the battery statute and places it in the domestic battery statute. Specifies that numerous provisions in the battery statute constitute domestic battery if they are committed against a family or household member. Makes certain other changes to penalties concerning the offense of battery. Provides that a person who knowingly or intentionally violates a no contact order in a child in need of services proceeding or in a juvenile delinquency proceeding commits a Level 6 felony. Makes conforming amendments.
Medical malpractice. Increases the amount of recoverable damages for injury or death to a patient. Increases health care provider liability limits. Defines "final nonappealable judgment." Specifies that claims from the patient's compensation fund must be paid not later than 60 days after the issuance of a court approved settlement or final nonappealable judgment. Increases amounts paid to: (1) health care provider members; and (2) the chairman; of the medical review panel. Provides that attorney fees may not exceed 32% of the total recovery. Adds anesthesiologist assistants to the definition of health care providers for purposes of the law concerning medical malpractice.
Civil proceeding advance payment transactions. Defines a "civil proceeding advance payment transaction", or "CPAP transaction", as a nonrecourse transaction in which a person (CPAP provider) provides to a consumer claimant in a civil proceeding a funded amount, the repayment of which is: (1) required only if the consumer claimant prevails in the civil proceeding; and (2) sourced from the proceeds of the civil proceeding. Permits a CPAP provider to charge: (1) a fee not exceeding an annual rate of 36% of the funded amount; (2) a servicing charge not exceeding an annual rate of 7% of the funded amount; and (3) a one time document fee not exceeding: (A) $250 for a CPAP transaction with a funded amount of less than $5,000; and (B) $500 for a CPAP transaction with a funded amount of at least $5,000; in connection with a CPAP transaction. Specifies that other than these fees and charges, a CPAP provider may not assess or collect any other fee or charge in connection with a CPAP transaction. Specifies that a CPAP transaction is not a loan. Specifies that provisions in the Uniform Consumer Credit Code (UCCC) concerning the regular schedule of payments and maximum loan term that otherwise apply to supervised loans do not apply to CPAP transactions. Establishes certain requirements, including specified disclosures, for a CPAP contract and requires that, if the consumer entering into the CPAP transaction is represented by an attorney, the consumer's attorney must review the CPAP contract. Sets forth prohibited acts with respect to: (1) CPAP providers; and (2) attorneys representing consumer claimants. Provides that after December 31, 2016, a person may not regularly engage in the business of making CPAP transactions in Indiana unless the person obtains, and maintains on an annual basis, a CPAP license issued by the department of financial institutions (department). Allows the department to adopt rules or policies to implement these provisions
Probate study subcommittee. Establishes a probate study subcommittee of the interim study committee on courts and the judiciary.
Uniform Fiduciary Access to Digital Assets Act. Enacts the Revised Uniform Fiduciary Access to Digital Assets Act of the National Conference of Commissioners on Uniform State Laws. Defines "digital asset" as an electronic record in which an individual has a right or interest. Defines "custodian" as a person that carries, maintains, processes, receives, or stores a digital asset. Defines "user" as a person for whom a custodian carries, maintains, processes, receives, or stores the digital asset. Defines "fiduciary" as an attorney in fact, guardian, personal representative, or trustee of a user. Authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user's digital assets. Provides that if an online tool allows the user to modify or delete a direction at all times, a user's direction to the custodian through use of the online tool concerning disclosure overrides a contrary direction by the user in a will, trust, power of attorney, or other record, but otherwise the user, in a will, trust, power of attorney, or other record, may allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets. Requires a custodian, under certain circumstances, to disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user, or a catalogue of electronic communications sent or received by the user. Requires a custodian, under certain circumstances, to disclose to an attorney in fact the content of the electronic communications of the user, or a catalogue of electronic communications sent or received by the user, if the user, through a power of attorney, conferred upon the attorney in fact authority over the content of electronic communications sent or received by the user. Requires a custodian, under certain circumstances, to disclose to a trustee the content of an electronic communication sent or received by a user and carried, maintained, processed, received, or stored by the custodian in the account of the trust, or to disclose to the trustee a catalogue of electronic communications sent or received by a user and stored, carried, or maintained by the custodian in the account of the trust. Provides that a court may grant a guardian access to the digital assets of the protected person and that, under certain circumstances, a custodian is required to disclose to a guardian a catalogue of electronic communications sent or received by the protected person. Authorizes a fiduciary of a user to request that a custodian terminate the user's account. Provides that, if the conditions for compliance are met, a custodian must comply with a request from a fiduciary to disclose digital assets or terminate an account within 60 days, and if the custodian fails to comply with the request, the fiduciary may apply for a court order directing compliance. Provides that the legal duties imposed on a fiduciary charged with managing tangible property also apply to a fiduciary charged with managing digital assets. Amends the law on unsupervised administration of a decedent's estate to provide that a distributee has the same rights as a personal representative to access the digital assets of the decedent. Makes conforming amendments. Provides that a custodian is immune from liability for an act done or omission made in good faith in compliance with the Revised Uniform Fiduciary Access to Digital Assets Act.
Probate matters. Provides that an individual otherwise qualified for certain property tax deductions for property that the individual occupies as a beneficiary of the trust that owns the property is not required to be considered the owner of the property under the rules of construction for the property tax law for the trust to receive the property tax deduction. Transfers certain inheritance tax duties from the probate court, county assessor, and county treasurer to the department of state revenue with respect to inheritance tax returns filed after March 31, 2016. Revises the inheritance tax allocation statute so that the current allocation between the counties and the state is unaffected by the transfer of inheritance tax duties. Provides that a will contest must be initiated in the same cause of action. Specifies the priority of a personal representative and stepchildren with respect to the disposition of a decedent's body and funeral arrangements. Specifies that a court must consider a standby guardian designation when appointing a guardian. Specifies that for purposes of a guardianship appointment, a person designated a standby guardian is second in priority to a person designated in a durable power of attorney. Specifies how property passes in a transfer on death transfer if the beneficiary disclaims the property.
Appraisement and real estate brokers. Removes the requirement that property sold at sheriff's sale be appraised. Adds to the existing list of acts that are exempt from the statute governing the licensure of real estate brokers the performance of an evaluation of real property by a financial institution in connection with a transaction for which the financial institution would not be required to use the services of a state licensed appraiser under regulations adopted under Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
Tax sales and tax sale properties. Provides that certain notices of tax sales may omit the descriptions of the properties to be offered for sale if: (1) the notice includes a statement indicating that descriptions of the properties and minimum bids are available on the Internet web site of the county government or the county government's contractor and in printed form upon request; and (2) the descriptions of the properties are made available on the county's Internet web site and in an electronic format, on a digital storage medium, or in printed form upon request. Provides that if a county auditor or county executive has published information concerning properties to be sold in a tax sale on the Internet web site of the county government or the county government's contractor, a person who requests information concerning descriptions of those properties in an alternative form may specify that the person prefers to receive the information in an electronic format, on a digital storage medium, or in printed form. Provides that if an owner of property that has been sold at a tax sale sells the property during the redemption period: (1) the amount the buyer must pay to redeem the property includes any excess amount that was paid by the winner bidder at the tax sale and that is being held in the tax sale surplus fund; (2) a county recorder may not record the conveyance document unless the buyer has redeemed the property; and (3) if the buyer does not redeem the property before the end of the redemption period, the conveyance is inoperable and void. Gives the attorney general the power to enforce current law pertaining to agreements for compensation to locate, deliver, recover, or assist in the recovery of money deposited in a tax sale surplus fund with respect to real property as a result of a tax sale. Provides that when a governmental entity or the state becomes the owner of real property with unpaid property taxes, delinquencies, fees, special assessments, and penalties assessed against the real property, the department of local government finance may release the lien against the real property and cancel these assessments with respect to the governmental entity, the state, or a subsequent purchaser, regardless of whether the property taxes were assessed before or after the governmental entity or the state became the owner of the real property. Specifies that the cancellation of the assessments and the release of the corresponding lien does not affect the liability of any person that is personally liable for the assessments.
Assessment appeals. Provides that, if the county property tax assessment board of appeals (PTABOA) fails to issue a determination concerning a petition to correct errors within 180 days after the petition is filed with the county auditor, the taxpayer may petition the Indiana board of tax review (Indiana board) to correct errors in a final administrative determination. Provides that, if the PTABOA fails to approve or disapprove an exemption application within 180 days after an owner files the exemption application, the owner may petition the Indiana board to approve or disapprove the exemption application. Provides that the Indiana board is authorized to approve or disapprove an exemption application: (1) previously submitted to a PTABOA; and (2) that is not approved or disapproved by the PTABOA within 180 days after the owner filed the application for exemption. Provides that the county assessor is a party to a petition to the Indiana board to approve or disapprove an exemption application.
Condominiums and homeowners associations. Makes the following amendments to the statutes concerning condominiums and homeowners associations: (1) Provides that notice of a proposed amendment of a condominium declaration or the governing documents of a homeowners association is required only with respect to first mortgage holders that provide an address to the secretary of the board of directors of the condominium association or homeowners association, as applicable. (2) Provides that a condominium co-owner or a homeowners association member is entitled to attend any meeting of the condominium's or homeowners association board, including an annual meeting. Provides that the board of directors may meet in private to discuss delinquent assessments or litigation matters. (3) Repeals provisions requiring condominium instruments and the governing documents of homeowners associations to include grievance resolution procedures. (4) Makes technical changes. Makes the following amendments to the statute concerning homeowners associations: (1) Specifies that certain provisions of the homeowners association statute apply to a homeowners association established before July 1, 2009, regardless of whether the members of the homeowners association have elected to be governed by the statute. (2) Provides that a homeowners association is not required to disclose communications that: (A) are initiated by the association or by a member of the association; and (B) concern suspected criminal activity by another member of the association. (3) Provides that in an enforcement action by the attorney general under the statute, the court may impose a civil penalty not exceeding $500 on an individual determined by the court to have exercised a proxy in violation of the statute.
Alternate rezoning procedure. Creates an optional alternate procedure to apply to rezoning proposals that provides the following: (1) If the plan commission makes a favorable recommendation, the rezoning proposal becomes effective unless an aggrieved person or the legislative body notifies the plan commission by a specified date. (2) If the plan commission makes an unfavorable recommendation or no recommendation, the rezoning proposal is defeated unless an aggrieved person or the legislative body notifies the plan commission by a specified date. (3) If the plan commission is notified by an aggrieved person or the legislative body by a specified date, the legislative body shall consider and make the final determination on the rezoning proposal. Reconciles a conflict in a statute concerning rezonings within an excluded city.