§ 12-240-125 — Disciplinary action by board - rules

Colorado § 12-240-125

• Jurisdiction: Colorado
• Title 12: Professions
• Art.: Medical Practice

Text

(1) (a) The president of the
board shall divide those members of the board other than the president into two
panels of six members each, four of whom shall be physician members.

(b) Each panel shall act as both an inquiry and a hearings panel. Members of
the board may be assigned from one panel to the other by the president. The
president may be a member of both panels, but in no event shall the president or
any other member who has considered a complaint as a member of a panel acting
as an inquiry panel take any part in the consideration of a formal complaint
involving the same matter.

(c) All matters referred to one panel for investigation shall be heard, if
referred for formal hearing, by the other panel or a committee of that panel.
However, in its discretion, either inquiry panel may elect to refer a case for formal
hearing to a qualified administrative law judge in lieu of a hearings panel of the
board, for an initial decision pursuant to section 24-4-105.

(d) The initial decision of an administrative law judge may be reviewed
pursuant to section 24-4-105 (14) and (15) by the filing of exceptions to the initial
decision with the hearings panel that would have heard the case if it had not been
referred to an administrative law judge or by review upon the motion of the
hearings panel. The respondent or the board's counsel shall file the exceptions.

(2) Investigations shall be under the supervision of the panel to which they
are assigned. The persons making the investigation shall report the results thereof
to the assigning panel for appropriate action.

(3) In the discharge of its duties, the board may enlist the assistance of other
licensees. Licensees have the duty to report to the board any licensee known, or
upon information and belief, to have violated any of the provisions of section 12-240-121 (1); except that a licensee who is treating another licensee for a behavioral,
mental health, or substance use disorder or the excessive use of any habit-forming
drug, shall not have a duty to report his or her patient unless, in the opinion of the
treating licensee, the impaired licensee presents a danger to himself, herself, or
others.

(4) (a) (I) Written complaints relating to the conduct of a licensee licensed or
authorized to practice medicine in this state may be made by any person or may be
initiated by an inquiry panel of the board on its own motion. The licensee
complained of shall be given notice by first-class mail of the nature of the
complaint and shall be given thirty days to answer or explain in writing the matters
described in such complaint. Upon receipt of the licensee's answer or at the
conclusion of thirty days, whichever occurs first, the inquiry panel may take further
action as set forth in subsection (4)(a)(II) of this section.

(II) The inquiry panel may then conduct a further investigation, which may be
made by one or more members of the inquiry panel, one or more licensees who are
not members of the board, a member of the staff of the board, a professional
investigator, or any other person or organization as the inquiry panel directs. The
investigation shall be entirely informal.

(b) The board shall cause an investigation to be made when the board is
informed of:

(I) Disciplinary actions taken by hospitals to suspend or revoke the privileges
of a physician and reported to the board pursuant to section 25-3-107;

(II) Disciplinary actions taken as a result of a professional review proceeding
pursuant to part 2 of article 30 of this title 12 against a physician. Disciplinary
actions shall be promptly reported to the board.

(III) An instance of a medical malpractice settlement or judgment against a
licensee reported to the board pursuant to section 10-1-120; or

(IV) Licensees who have been allowed to resign from hospitals for medical
misconduct. Hospitals shall report the resignation.

(c) On completion of an investigation, the inquiry panel shall make a finding
that:

(I) The complaint is without merit and no further action need be taken with
reference thereto;

(II) There is no reasonable cause to warrant further action with reference
thereto;

(III) There is an instance of conduct that does not warrant formal action by
the board and should be dismissed, but the inquiry panel has noticed indications of
possible errant conduct by the licensee that could lead to serious consequences if
not corrected. In this case, the board shall send a confidential letter of concern in
accordance with section 12-20-404 (5) to the licensee against whom the complaint
was made.

(IV) There is an instance of misconduct that, in the opinion of the board, does
not warrant formal action by the board but that should not be dismissed as being
without merit. In this case, the board may issue and send a letter of admonition to
the licensee in accordance with section 12-20-404 (4).

(V) The investigation discloses facts that warrant further proceedings by
formal complaint, as provided in subsection (5) of this section. In this case, the
complaint shall be referred to the attorney general for preparation and filing of a
formal complaint.

(d) All proceedings pursuant to this subsection (4) shall be expeditiously and
informally conducted so that no licensee is subjected to unfair and unjust charges
and that no complainant is deprived of his or her right to a timely, fair, and proper
investigation of his or her complaint.

(5) (a) All formal complaints shall be heard and determined in accordance
with subsection (5)(b) of this section and section 24-4-105. Except as provided in
subsection (1) of this section, all formal hearings shall be conducted by the hearings
panel. The licensee may be present in person and by counsel, if so desired, to offer
evidence and be heard in his or her own defense. At formal hearings, the witnesses
shall be sworn and a complete record shall be made of all proceedings and
testimony.

(b) Except as provided in subsection (1) of this section, an administrative law
judge shall preside at the hearing and shall advise the hearings panel, as requested,
on legal matters in connection with the hearing. The administrative law judge shall
provide advice or assistance as requested by the hearings panel in connection with
its preparations of its findings and recommendations or conclusions to be made.
The administrative law judge may act in accordance with section 12-20-403 and
perform other duties as authorized by the hearings panel.

(c) (I) To warrant a finding of unprofessional conduct, the charges shall be
established as specified in section 24-4-105 (7). Except as provided in subsection (1)
of this section, the hearings panel shall make a report of its findings and
conclusions that, when approved and signed by a majority of those members of the
hearings panel who have conducted the hearing pursuant to subsections (5)(a) and
(5)(b) of this section, shall be and become the action of the board.

(II) If it is found that the charges are unproven, the hearings panel, or an
administrative law judge sitting in lieu of the hearings panel pursuant to subsection
(1) of this section, shall enter an order dismissing the complaint.

(III) If the hearings panel finds the charges proven and orders that discipline
be imposed, it shall also determine the extent of the discipline, which must be in the
form of a letter of admonition, suspension for a definite or indefinite period, or
revocation of license to practice. The hearings panel also may impose a fine of up to
five thousand dollars per violation. In determining appropriate disciplinary action,
the hearings panel shall first consider sanctions that are necessary to protect the
public. Only after the panel has considered sanctions may it consider and order
requirements designed to rehabilitate the licensee or applicant. If discipline other
than revocation of a license to practice is imposed, the hearings panel may also
order that the licensee be granted probation and allowed to continue to practice
during the period of probation. The hearings panel may also include in any
disciplinary order that allows the licensee to continue to practice such conditions as
the panel may deem appropriate to assure that the licensee is physically, mentally,
morally, and otherwise qualified to practice medicine, practice as a physician
assistant, or practice as an anesthesiologist assistant in accordance with generally
accepted professional standards of practice, including any or all of the following:

(A) Submission by the respondent to such examinations as the hearings
panel may order to determine the respondent's physical or mental condition or the
respondent's professional qualifications;

(B) Taking by the respondent of therapy or courses of training or education
as may be needed to correct deficiencies found either in the hearing or by the
examinations;

(C) Review or supervision of the respondent's practice as may be necessary
to determine the quality of the respondent's practice and to correct deficiencies
therein; and

(D) The imposition of restrictions upon the nature of the respondent's
practice to assure that the respondent does not practice beyond the limits of the
respondent's capabilities.

(IV) Upon the failure of the licensee to comply with any conditions imposed
by the hearings panel pursuant to subsection (5)(c)(III) of this section, unless due to
conditions beyond the licensee's control, the hearings panel may order suspension
of the licensee's license to practice medicine, practice as a physician assistant, or
practice as an anesthesiologist assistant in this state until the licensee complies
with the conditions.

(V) In making any of the orders provided in subsections (5)(c)(III) and (5)(c)(IV)
of this section, the hearings panel may take into consideration the licensee's prior
disciplinary record. If the hearings panel does take into consideration any prior
discipline of the licensee, its findings and recommendations shall so indicate.

(VI) In all cases of revocation, suspension, or probation, the board shall enter
in its records the facts of the revocation, suspension, or probation and of any
subsequent action of the board with respect thereto.

(VII) In all cases involving alleged violations of section 12-240-121 (1)(dd), the
board shall promptly notify the executive director of the department of public
health and environment of its findings, including whether it found that the physician
violated section 12-240-121 (1)(dd) and any restrictions it placed on the physician
with respect to recommending the use of medical marijuana.

(d) The attorney general shall prosecute those charges that have been
referred to the attorney general by the inquiry panel pursuant to subsection
(4)(c)(V) of this section. The board may direct the attorney general to perfect an
appeal.

(e) The two-year waiting period specified in section 12-20-404 (3) applies to
any person whose license to practice medicine, to practice as a physician assistant,
to practice as an anesthesiologist assistant, or to practice any other health-care
occupation is revoked by the board, another applicable regulator, or any other
legally qualified board or regulatory entity.

(6) A majority of the members of the board, three members of the inquiry
panel, or three members of the hearings panel shall constitute a quorum. The action
of a majority of those present comprising a quorum shall be the action of the board,
the inquiry panel, or the hearings panel.

(7) If any licensee is determined to be mentally incompetent or insane by a
court of competent jurisdiction and a court enters, pursuant to part 3 or 4 of article
14 of title 15 or section 27-65-110 (4) or 27-65-127, an order specifically finding that
the mental incompetency or insanity is of such a degree that the licensee is
incapable of continuing to practice medicine, practice as a physician assistant, or
practice as an anesthesiologist assistant, the board shall automatically suspend the
licensee's license, and, anything in this article 240 to the contrary notwithstanding,
the suspension must continue until the licensee is found by the court to be
competent to practice medicine, practice as a physician assistant, or practice as an
anesthesiologist assistant.

(8) (a) If the board has reasonable cause to believe that a licensee is unable
to practice with reasonable skill and safety to patients because of a condition
described in section 12-240-121 (1)(e) or (1)(i), it may require the licensee to submit to
mental or physical examinations by physicians designated by the board. If a
licensee fails to submit to the mental or physical examinations, the board may
suspend the license until the required examinations are conducted.

(b) Every licensee shall be deemed, by practicing or by applying for annual
registration of the person's license, to have consented to submit to mental or
physical examinations when directed in writing by the board. Further, the person
shall be deemed to have waived all objections to the admissibility of the examining
physician's testimony or examination reports on the ground of privileged
communication. Subject to applicable federal law, the licensee shall be deemed to
have waived all objections to the production of medical records to the board from
health-care providers that may be necessary for the evaluations described in
subsection (8)(a) of this section.

(c) The results of any mental or physical examination ordered by the board
shall not be used as evidence in any proceeding other than before the board.

(9) (a) Investigations, examinations, hearings, meetings, or any other
proceedings of the board conducted pursuant to this section shall be exempt from
any law requiring that proceedings of the board be conducted publicly or that the
minutes or records of the board with respect to action of the board taken pursuant
to this section be open to public inspection. This subsection (9) shall not apply to
investigations, examinations, hearings, meetings, or any other proceedings or
records of the licensing panel created pursuant to section 12-240-116 related to the
unlicensed practice of medicine.

(b) For purposes of the records related to a complaint filed pursuant to this
section against a licensee, the board is considered a professional review committee,
the records related to the complaint include all records described in section 12-30-202 (8), and section 12-30-204 (12) applies to those records.

(10) A licensee who, at the request of the board, examines another licensee
shall be immune from suit for damages by the person examined if the examining
person conducted the examination and made his or her findings or diagnosis in
good faith.

(11) Within thirty days after the board takes final action, which is of public
record, to revoke or suspend a license or to place a licensee on probation based on
competence or professional conduct, the board shall send notice of the final action
to any hospital in which the licensee has clinical privileges, as indicated by the
licensee.

(12) The board may issue cease-and-desist orders under the circumstances
and in accordance with the procedures specified in section 12-20-405; except that
the board:

(a) May also issue a cease-and-desist order on its own motion; and

(b) May only issue a cease-and-desist order when it appears that a licensee
is acting in a manner that is an imminent threat to the health and safety of the
public.

(13) If a physician has a restriction placed on his or her license, the restriction
shall, if practicable, state whether the restriction prohibits the physician from
making a medical marijuana recommendation.

Legislative History

Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1195, � 1, effective October 1; (4)(c)(IV) amended, (SB 19-193), ch. 406, p. 3589, � 14, effective October 1. L. 2022: (7) amended, (HB 22-1256), ch. 451, p. 3222, � 8, effective August 10.