A.
Basis: The authority for the promulgation of these
rules and regulations by the Colorado Medical Board ("Board") is set forth in
Sections 24-4-103,
12-20-204(1),
12-240-106(1)(a),
and 12-240-125, C.R.S.
B.
Purpose: The
purpose of these rules and regulations is to provide a procedural safeguard for
licensees whose licenses are suspended by the Board pursuant to sections
24-4-104(4),
24-60-3602(10),
12-240-125(5)(c)(IV),
12-240-125(7), or
12-240-125(8)(a),
C.R.S. These Rules are not intended to apply to the case of suspensions
pursuant to section
12-240-125(5)(c)(III),
C.R.S. The procedures set forth in this Rule are in addition to those provided
by the Medical Practice Act and the Administrative Procedure Act.
C. SUSPENSIONS PURSUANT TO SECTION
24-4-104(4),
C.R.S.
When an Inquiry Panel determines that the suspension of a
license is appropriate pursuant to section
24-4-104(4),
C.R.S., it shall offer the licensee an opportunity to appear before the Inquiry
Panel to offer evidence supporting why the licensee should not be suspended.
This hearing does not substitute for the hearing afforded by section
24-4-104(4),
C.R.S., but is in addition to such hearing. The Inquiry Panel shall determine
whether the opportunity for a hearing may occur before the Inquiry Panel's
consideration of whether to suspend, or whether the opportunity for hearing
shall occur after the entry of an order suspending a license. The determination
of whether to offer a licensee notice of the right to a pre-suspension hearing
or to offer a post-suspension hearing shall be in the sole discretion of the
Inquiry Panel and shall not be subject to review.
1. Pre-Suspension Notice
In the event that the Inquiry Panel believes that suspension
may be indicated, the Inquiry Panel shall:
a. Provide notice to the licensee of the
suspension. Board staff shall give notice to the licensee by first class mail
and shall send notice to the licensee's address of record pursuant to Board
Rule 1.11;
b. Issue the notice
within seventy-two hours of the suspension, excluding interim weekends and
state holidays from the calculation; and,
c. Include the following information:
(1) A statement of the general nature of the
issues that may warrant suspension. Such statement of the general nature of the
issues that may warrant suspension need not be as comprehensive or detailed as
a formal charging document in a hearing conducted pursuant to the
Administrative Procedure Act;
(2) A
statement instructing that the Inquiry Panel may suspend the licensee's license
at its next meeting;
(3) A
statement that the licensee may request a hearing before the Inquiry Panel at
its next meeting, but must do so prior to the Inquiry Panel's next agenda
deadline;
(4) A statement informing
the licensee of the next regularly scheduled agenda deadline and the date and
time of the next regularly scheduled meeting;
(5) A statement informing the licensee that
written material, up to a limit of thirty pages, may be submitted by the same
deadline; and,
(6) A statement that
written material submitted by this deadline will be provided to the Inquiry
Panel members prior to the meeting;
(7) A statement that written material not
submitted by the agenda deadline may be presented during the hearing at the
Inquiry Panel Chair's discretion.
2. Suspension After Pre-Suspension Notice
In the event that the licensee chooses not to request a
pre-suspension hearing and is subsequently suspended, the Inquiry Panel
shall:
a. Provide notice to the
licensee of the suspension. Board staff shall give notice to the licensee by
first class mail and shall send notice to the licensee's address of record
pursuant to Board Rule 1.11;
b.
Issue the notice within seventy-two hours of the suspension, excluding interim
weekends and state holidays from the calculation; and,
c. Include within the notice a statement of
the general nature of the issues that led to suspension. Such statement of the
general nature of the issues that led to suspension need not be as
comprehensive or detailed as a formal charging document in a hearing conducted
pursuant to the Administrative Procedure Act.
3. Post-Suspension Notice
In the event that the Inquiry Panel determines that
suspension without pre-suspension notice and hearing is warranted, the Inquiry
Panel shall:
a. Provide notice to the
licensee of the suspension. Board staff shall give notice to the licensee by
first class mail and shall send notice to the licensee's address of record
pursuant to Board Rule 1.11;
b.
Issue the notice within seventy-two hours of the suspension, excluding interim
weekends and state holidays from the calculation; and,
c. Include the following information:
(1) A statement of the general nature of the
issues that led to suspension. Such statement of the general nature of the
issues that led to suspension need not be as comprehensive or detailed as a
formal charging document in a hearing conducted pursuant to the Administrative
Procedure Act;
(2) A statement
instructing that the licensee may request a hearing before the Inquiry Panel at
its next meeting for the purpose of requesting that the suspension be set
aside, but the licensee must make such a request prior to the Panel's next
agenda deadline;
(3) A statement
informing the licensee of the next regularly scheduled agenda deadline and the
date and time of the next regularly scheduled meeting;
(4) A statement informing the licensee that
written material, up to a limit of thirty pages, may be submitted by the same
deadline;
(5) A statement that
written material submitted by this deadline will be provided to the Inquiry
Panel members prior to the meeting; and,
(6) A statement that written material not
submitted by the agenda deadline may be presented during the hearing at the
Inquiry Panel Chair's discretion.
D. SUSPENSIONS PURSUANT TO SECTION
12-240-125(5)(c)(IV),
C.R.S.
1. In the event that the board
determines that the suspension of a license is appropriate pursuant to section
12-240-125(5)(c)(IV),
C.R.S., the Board may order suspension of the licensee's license until such
time as the licensee complies with all conditions of the Final Agency
Order.
2. In making the
determination to suspend a license, the Board may take into consideration the
licensee's prior disciplinary record. If the Board does take into consideration
any prior discipline of the licensee, its findings and recommendations shall so
indicate.
3. In the event that the
Board orders suspension of a license pursuant to section
12-240-125(5)(c)(IV),
C.R.S., the Board shall:
a. Provide notice to
the licensee of the suspension. Board staff shall give notice to the licensee
by first class mail and shall send notice to the licensee's address of record
pursuant to Board Rule 1.11;
b.
Issue the notice within seventy-two hours of the suspension, excluding interim
weekends and state holidays from the calculation; and
c. Include the following information:
(1) A statement of the general nature of the
issues that led to suspension. Such statement of the general nature of the
issues that led to suspension need not be as comprehensive or detailed as a
formal charging document in a hearing conducted pursuant to the Administrative
Procedure Act;
(2) A statement
instructing that the licensee may request a hearing before the Board for the
limited purpose of showing that his or her failure to comply with the
Stipulation and Final Agency Order was due to circumstances beyond his or her
control, and that therefore his or her license should not be suspended. The
licensee must make the request for hearing prior to the Panel's next agenda
deadline;
(3) A statement informing
the licensee of the next regularly scheduled agenda deadline and the date and
time of the next regularly scheduled meeting;
(4) A statement informing the licensee that
written material, up to a limit of thirty pages, may be submitted by the same
deadline;
(5) A statement that
written material submitted by this deadline will be provided to the Board prior
to the meeting; and,
(6) A
statement that written material not submitted by the agenda deadline may be
presented during the hearing at the Inquiry Panel Chair's discretion.
E. SUSPENSIONS
PURSUANT TO SECTION
12-240-125(7),
C.R.S.
In the event that any licensee is determined to be mentally
incompetent or insane by a court of competent jurisdiction and a court enters
an Order making findings of such a degree that a licensee is incapable of
continuing to practice, the Board shall automatically suspend the licensee's
license pursuant to section
12-240-125(7),
C.R.S.
Any suspension shall continue until the licensee is found by
such court to be competent to practice.
1. When the Board orders suspension of a
license pursuant to section
12-240-125(7),
C.R.S., the Board shall:
a. Provide notice to
the licensee of the suspension. Board staff shall give notice to the licensee
by first class mail and shall send notice to the licensee's address of record
pursuant to Board Rule 1.11;
b.
Issue the notice within seventy-two hours of the suspension, excluding interim
weekends and state holidays from the calculation; and,
c. Include the following information:
(1) A statement of the general nature of the
issues that led to suspension. Such statement of the general nature of the
issues that led to suspension need not be as comprehensive or detailed as a
formal charging document in a hearing conducted pursuant to the Administrative
Procedure Act;
(2) A statement
instructing that the licensee may request a post-suspension hearing before the
Inquiry Panel at its next meeting for the limited purpose of providing evidence
that the licensee either has not been determined or is no longer determined to
be incompetent or insane by a court and to request that the Suspension Order be
set aside;
(3) A statement
informing the licensee of the next regularly scheduled agenda deadline and the
date and time of the next regularly scheduled meeting;
(4) A statement informing the licensee that
written material, up to a limit of 30 pages, may be submitted by the same
deadline;
(5) A statement that
written material submitted by this deadline will be provided to the Inquiry
Panel members prior to the meeting;
(6) A statement that written material not
submitted by the agenda deadline may be presented during the hearing at the
Inquiry Panel Chair's discretion; and,
(7) A statement that the licensee may make a
request for a hearing at any time after the court makes a determination that
the licensee is no longer determined by the court to be incompetent or insane.
Such request, with any accompanying documents, shall be placed onto the agenda
for the next regularly scheduled agenda deadline.
F. SUSPENSIONS PURSUANT
TO SECTION
12-240-125(8)(a),
C.R.S.
In the event that an Inquiry Panel issues an Order to a
licensee for the reasons articulated in section
12-240-125(8)(a),
C.R.S., the licensee must submit to mental or physical examinations as
determined by the Board.
When a licensee fails to comply with the Order for
examination pursuant to section
12-240-125(8)(a),
C.R.S., the Inquiry Panel may suspend the licensee's license until such time as
the licensee complies with such conditions.
1. When the Inquiry Panel orders suspension
of a license pursuant to section
12-240-125(8)(a),
C.R.S., the Inquiry Panel shall:
a. Provide
notice to the licensee of the suspension. Board staff shall give notice to the
licensee by first class mail and shall send notice to the licensee's address of
record pursuant to Board Rule 1.11;
b. Issue the notice within seventy-two hours
of the suspension, excluding interim weekends and state holidays from the
calculation; and,
c. Include the
following information:
(1) A statement of the
general nature of the issues that led to suspension. Such statement of the
general nature of the issues that led to suspension need not be as
comprehensive or detailed as a formal charging document in a hearing conducted
pursuant to the Administrative Procedure Act;
(2) A statement instructing that the licensee
may request a post-suspension hearing before the Inquiry Panel at its next
meeting for the purpose of requesting that the suspension be set aside, but the
licensee must make such a request prior to the Panel's next agenda
deadline;
(3) A statement informing
the licensee of the next regularly scheduled agenda deadline and the date and
time of the next regularly scheduled meeting;
(4) A statement informing the licensee that
written material, up to a limit of thirty pages, may be submitted by the same
deadline;
(5) A statement that
written material submitted by this deadline will be provided to the Inquiry
Panel members prior to the meeting; and,
(6) A statement that written material not
submitted by the agenda deadline may be presented during the hearing at the
Inquiry Panel Chair's discretion.
G. SUSPENSIONS PURSUANT TO SECTION
24-60-3602, C.R.S.
1. Section
24-60-3601
et
seq., C.R.S., applies to licensees who have obtained expedited
licensure through the Interstate Medical Licensure Compact.
2. Where Colorado is the licensee's state of
principal license, as that term is identified in section
24-60-3602, C.R.S., any suspension
proceeding shall follow the procedures identified within Rule 1.22 for the
statutory basis on which the suspension action issued.
3. In the event that another state is the
licensee's state of principal license, and that principal state suspends the
license of a Colorado licensee, then the licensee's Colorado license shall be
automatically placed on suspended status, without further action necessary by
an Inquiry Panel, pursuant to section
24-60-3602(10)(b),
C.R.S.
a. In the event that the state of
principal license terminates the suspension of the license or otherwise
reinstates the license issued by the principal state, an Inquiry Panel will
review the matter at its next regularly-scheduled panel meeting to determine
whether to terminate the suspension of the license or to reinstate the
license.
b. In the event that the
Inquiry Panel does not terminate the suspension of the Colorado license
following its review, the Inquiry Panel shall follow the procedures identified
within this Rule 280 for the statutory basis on which the ongoing suspension
action is based.
4.
Where another member state, as that term is identified in section
24-60-3602, C.R.S., acts to
suspend the license of a licensee, the licensee's Colorado license shall be
automatically placed on suspended status, without further action necessary by
an Inquiry Panel, pursuant to section
24-60-3602(10)(d),
C.R.S.
a. The Inquiry Panel may maintain its
suspension of the licensee's Colorado license for ninety days in order to
investigate the basis for the action.
b. The Inquiry Panel shall follow the
procedures identified within this Rule 1.22 for the statutory basis on which
the suspension action issued.
c.
The Inquiry Panel may terminate the suspension of the licensee's Colorado
license prior to the conclusion of the ninety day period.
H. GENERAL RULES APPLICABLE TO ALL
HEARINGS
1. Licensee's Right To Hearing
Except as otherwise limited by Section (G)of this Rule, a
licensee may request a hearing after any Suspension Order enters. The licensee
shall make his or her request for a hearing in conformance with the scope and
process described within this Rule, based on the statutory basis for the
suspension which has entered against the licensee.
2. Notice Of Time And Place Of Hearing
Upon timely receipt of a request for a hearing, whether
before or after a suspension, Board staff shall notify the licensee of the time
and place for the hearing. No licensee shall be permitted a hearing at any
Board meeting absent written notice to do so from Board staff.
3. The Nature Of The Hearing
The hearing, whether before or after a suspension, shall be
conducted by the Chair of the Inquiry Panel and shall be entirely informal. The
hearing need not conform to the requirements of section
24-4-105, C.R.S. The hearing shall
not be transcribed or recorded either by the Inquiry Panel or the licensee. The
licensee may appear with counsel. Both the licensee and counsel may present
argument and may comment on the previously submitted written material. The
licensee may offer evidence through witnesses. Such testimony may be written or
in person (including testimony by telephone) and need not be sworn. If the
licensee intends to present testimony by telephone, it shall be coordinated
with Board staff prior to the date of the hearing. Cross examination of the
witnesses by the Panel members or counsel for the Panel may be permitted in the
discretion of the Inquiry Panel's Chair. No hearing shall exceed thirty
minutes, unless, in the discretion of the Inquiry Panel's Chair, additional
time is necessary in the interests of a fair hearing. Following the
presentation of evidence and argument, the licensee, counsel to the licensee,
and any witnesses or persons associated with the licensee shall depart the
meeting room. The Inquiry Panel shall then deliberate. Following its
deliberations, the Inquiry Panel shall instruct its counsel to communicate the
Inquiry Panel's decision to the licensee in writing within seventy-two hours of
the decision (excluding interim weekends and state holidays from the
calculation).
The hearing conducted pursuant to these Rules shall be a
"hearing" as set forth in section
12-240-125(9),
C.R.S. Nothing in these Rules shall waive or limit the Inquiry Panel's ability
to communicate with its counsel, orally or in writing, at any time, in
confidence. Nothing in these Rules or in the hearing called for by these Rules
shall waive any privilege on the part of the Board, Hearings Panel or Inquiry
Panel. Specifically, but not by way of limitation, the Board, Hearings Panel or
Inquiry Panel shall not be deemed to have waived its attorney-client or
deliberative process privileges. The decision of the Inquiry Panel is not
subject to appeal and shall not constitute "final agency action" as set out in
section 24- 4-102(1), C.R.S.
