Board of Nursing v. Long-Romero

• Court: Colorado Court of Appeals
• Decided: November 14, 2024
• Docket: 24CA0427
• Status: Unknown

Opinion

24CA0427 Board of Nursing v Long-Romero 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0427

Colorado State Board of Nursing Nos. 2019-0043 & 2019-5983

State Board of Nursing,

Petitioner-Appellee,

v.

Shari L. Long-Romero, R.N., C.N.M., R.X.N.,

Respondent-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE DUNN

Navarro and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 14, 2024

Philip J. Weiser, Attorney General, Amy Meiburg, Senior Assistant Attorney

General, Ashley Barrett Carter, Senior Assistant Attorney General, Denver,

Colorado, for Petitioner-Appellee

Hershey Decker Drake, Carmen N. Decker, Kaylyn Peister, Lone Tree, Colorado,

for Respondent-Appellant

1

¶ 1 In this second appeal involving her advanced practice nursing

registration, Shari L. Long-Romero (Romero) appeals the State

Board of Nursing’s order disciplining her for violations of the Nurse

and Nurse Aide Practice Act (Act). Romero specifically argues that

the Board violated the remand order and mandate from her first

appeal. Because we disagree, we affirm the order.

I. Background

A. The Charges and the Board’s Original Order

¶ 2 Romero is registered as a certified nurse midwife on the

advanced practice nurse registry. Within a roughly thirteen-month

span, two of Romero’s patients’ babies had no detectable fetal heart

rate upon delivery. Despite attempts to resuscitate them, the

babies died.

1

¶ 3 Complaints about the patients’ care led to formal charges

against Romero. The charges alleged that Romero violated the Act

by (1) acting in a manner inconsistent with patient health and

safety under section 12-255-120(1)(c), C.R.S. 2024; (2) failing to

1

We focus on the facts and procedural history relevant to this

appeal. For details on the facts leading to the disciplinary charges,

see Colo. State Bd. of Nursing v. Long-Romero, (Colo. App. No.

20CA1995, June 9, 2022) (not published pursuant to C.A.R. 35(e)).

2

meet generally accepted standards of care under section 12-255-

120(1)(f); and (3) failing to make correct or essential patient record

entries under section 12-255-120(1)(h). After an evidentiary

hearing, an administrative law judge issued an initial decision

finding that Romero violated the Act as charged. The initial order

imposed sanctions for the violations, which included restrictions on

Romero’s advanced nursing registration and prescriptive authority.

On review, the Board entered a final order, adopting the initial

decision.

2

B. The First Appeal

¶ 4 Romero appealed, challenging both the Board’s findings that

she violated the Act and the sanctions imposed. A division of this

court reversed the portions of the Board’s order finding that Romero

failed to (1) make an essential entry regarding one patient and

(2) consult with a physician regarding the other patient. See Colo.

2

For disciplinary proceedings, the Board is divided into two panels.

See § 12-255-119(1)(a), C.R.S. 2024; see also Colo. State Bd. of Med.

Exam’rs v. Ogin, 56 P.3d 1233, 1240 (Colo. App. 2002). The two

panels can each function as an inquiry panel (which investigates

and prosecutes complaints) or a hearing panel (which reviews the

initial decision and issues a final order). See Ogin, 56 P.3d at 1240.

Where helpful, we will refer to the inquiry or hearing panel, but

otherwise we refer simply to the Board.

3

State Bd. of Nursing v. Long-Romero, slip op. at ¶ 108 (Colo. App.

No. 20CA1995, June 9, 2022) (not published pursuant to C.A.R.

35(e)) (Romero I). The division otherwise affirmed the order finding

that Romero violated the Act. Id. Because it set aside portions of

the Board’s order, the division didn’t address Romero’s challenge

that the imposed discipline was beyond the Board’s discretion;

rather, it remanded “th[e] matter for further proceedings consistent

with this opinion.” Id.

C. The Remand Proceedings

¶ 5 Back before the hearing panel, the parties filed position

statements that disagreed about the scope of the remand

proceedings. Romero maintained that the matter must be returned

to the administrative law judge “for additional proceedings” and a

“new [i]nitial [d]ecision.” Romero alternatively outlined the

discipline she would accept. By contrast, the inquiry panel argued

that Romero I didn’t order the Board to conduct a new hearing.

Thus, the inquiry panel urged the hearing panel to issue a final

order striking the now reversed violations and imposing “a sanction

that protects the public.” As to the sanction, the inquiry panel

4

argued that the originally imposed restrictions remained

appropriate to protect the public.

¶ 6 After receiving the parties’ positions, the Board issued a final

order on remand. In it, the Board (1) denied Romero’s request for a

new hearing; (2) struck the two reversed Act violations; and (3)

concluded that, for the violations that Romero I affirmed, the

discipline originally imposed continued to be warranted and

necessary to protect the public.

II. Analysis

¶ 7 Romero faults the Board for issuing the remand order and

imposing sanctions for the remaining violations without a new

hearing. She says this violated the Romero I remand order and

mandate.

¶ 8 When an appellate court remands a case with specific

directions to enter a particular judgment or to pursue a prescribed

course, an agency has no discretion except to comply with the

5

instructions.

3

See Musgrave v. Indus. Claim Appeals Off., 762 P.2d

686, 687-88 (Colo. App. 1988); see also Pittsburg Cnty. Rural Water

Dist. No. 7 v. City of McAlester, 358 F.3d 694, 711 (10th Cir. 2004)

(“[W]hen the further proceedings are specified in the mandate the

district court is limited to holding[s] such as are directed.” (quoting

Mason v. Texaco, Inc., 948 F.2d 1546, 1552 (10th Cir. 1991))). But

when a case is remanded for further proceedings consistent with

the appellate court’s opinion, that’s a general remand. Musgrave,

762 P.2d at 688; see also People in Interest of M.D., 2014 COA 121,

¶ 19 (observing that when a court remanded the case for further

proceedings consistent with the court’s opinion, “it was a general

remand, and the court was not required to pursue a prescribed

course”). With a general remand, an agency retains discretion to

make new findings and conclusions so long as there’s no conflict

with the appellate court ruling. Musgrave, 762 P.2d at 688; see

also Owners Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA

3

Neither party suggests that an agency — such as the Board — is

not required to follow the law of the case established by appellate

courts. See, e.g., Copart, Inc. v. Admin. Rev. Bd., 495 F.3d 1197,

1201 (10th Cir. 2007) (noting that the law of the case doctrine

applies to administrative agencies on remand).

6

114, ¶ 34 (discussing discretion of lower court after “an appellate

court issues a general remand for further proceedings”).

¶ 9 We review de novo whether an agency complied with an

appellate ruling. See Owners, ¶ 21.

¶ 10 Romero argues that the Board violated the division’s remand

order and mandate because Romero I ordered the Board “to hold

further proceedings,” which, as we understand her argument,

meant the Board was required to remand the matter to the

administrative law judge for a new hearing.

¶ 11 But that’s not what Romero I said. Nothing in Romero I

directed the Board “to hold” any hearing, let alone remand the

matter to the administrative law judge for another hearing. Rather,

Romero I simply remanded “this matter for further proceedings

consistent” with the opinion. Romero I, No. 20CA1995, slip op. at

¶ 108. Because the remand order didn’t require any particular

proceeding, it was a general remand. See Musgrave, 762 P.2d at

687-88. The Board therefore retained discretion to determine

whether a hearing was necessary. See id. Having considered the

parties’ respective positions on remand, the Board concluded that

“a new hearing is unnecessary because there are no outstanding

7

factual disputes,” “no additional evidence is needed,” and “[t]he only

determination to be made on remand is what sanction to impose for

the violations” affirmed by Romero I. That determination was within

the Board’s discretion and didn’t violate Romero I.

¶ 12 To the extent that Romero contends that “further proceedings”

must mean a new hearing, we disagree. As already explained, a

remand for further proceedings is a common and generic remand

that doesn’t cabin an agency’s discretion. See Musgrave, 762 P.2d

at 687-88. By contrast, when a division of this court intends to

limit an agency’s (or lower court’s) discretion and require a new

hearing, it says so clearly and directly. See In re Marriage of Paige,

2012 COA 83, ¶¶ 14-15 (holding the trial court “must hold an

evidentiary hearing on remand”); Bush v. Winker, 892 P.2d 328, 333

(Colo. App. 1994) (ordering remand for “evidentiary hearing”), aff’d,

907 P.2d 79 (Colo. 1995); Craddock v. Colo. State Bd. of Assessment

Appeals, 819 P.2d 1100, 1103 (Colo. App. 1991) (remanding for a

new hearing). That’s not what happened here.

¶ 13 Nor are we persuaded by Romero’s suggestion that a new

hearing was required to remedy the deprivation of her “due process

rights.” To be sure, Romero I concluded that Romero didn’t have

8

sufficient notice of one alleged violation and a second alleged

violation wasn’t referred by the inquiry panel. Romero I, No.

20CA1995, slip op. at ¶¶ 66-70, 95-96. Based on these

conclusions, the division set aside the Board’s findings related to

those purported violations and reversed the portion of the Board’s

order making those findings. Id. at ¶¶ 70, 96, 108. By doing that,

the division remedied the due process violations. And on remand

the Board struck those findings from its final remand order and

concluded that the affirmed violations warranted the sanctions

originally imposed. Thus, Romero wasn’t penalized for the due

process violations.

4

¶ 14 Romero next takes issue with the sanctions imposed on

remand. To the extent she maintains that the Board was required

to hold a new hearing before imposing sanctions on remand, for the

reasons already explained, we disagree. But to the extent she

4

To the extent Romero also suggests that section 24-4-105, C.R.S.

2024, required the Board to remand the case to the administrative

law judge to impose sanctions, we disagree. While that statute

allows the Board to remand the case to the administrative law

judge, it also allows the Board to “affirm, set aside, or modify the

order or any sanction or relief entered therein, in conformity with

the facts and the law.” § 24-4-105(15)(b).

9

objects to the actual sanctions imposed, it’s for the Board — not

this court — to determine the appropriate sanction for violations of

the Act. See § 12-255-119(4)(c)(III)-(IV), C.R.S. 2024; see also Colo.

State Bd. of Med. Exam’rs v. Ogin, 56 P.3d 1233, 1240 (Colo. App.

2002) (“[A] reviewing court may not substitute its judgment for that

of the [B]oard as to what constitutes appropriate sanctions.”). And

the Board found that the violations Romero I affirmed — acting in a

manner inconsistent with patient health and safety and failing to

meet generally accepted standards of care — warranted the

sanctions that were originally imposed. In reaching that

conclusion, the Board specifically found that the sanctions were

necessary to protect the public. See § 12-255-119(4)(c)(IV) (“In

determining appropriate disciplinary action, the hearings panel

shall first consider sanctions that are necessary to protect the

public.”). While Romero disagrees with the imposed sanctions and

criticizes the Board for not parsing out discipline related to each

violation, she doesn’t argue that the sanctions “bear[] no relation to

the conduct,” are “manifestly excessive,” or constitute a “gross

abuse of discretion.” Colo. Real Est. Comm’n v. Hanegan, 947 P.2d

10

933, 936 (Colo. 1997). Because nothing suggests the sanctions are

outside the Board’s broad discretion, we must uphold them. See id.

III. Disposition

¶ 15 The order is affirmed.

JUDGE NAVARRO and JUDGE GOMEZ concur.