Colorado Medical Society v. Hickenlooper, Colorado Governor
349 P.3d 1133
Colo.2015Background
- Federal Medicare/Medicaid regulations condition reimbursement on physician supervision of CRNAs unless a governor attests the opt-out is consistent with state law and in the state's best interests.
- In 2010 Governor Bill Ritter consulted Colorado Medical and Nursing Boards, concluded the opt-out met federal criteria, and submitted an attestation exempting all Colorado critical access hospitals and specified rural hospitals from the supervision requirement.
- Colorado Medical Society and Colorado Society of Anesthesiologists sued the Governor, arguing Colorado law requires physician supervision of CRNAs and thus the opt-out violated state law.
- The trial court found petitioners had standing but dismissed for failure to state a claim, concluding Colorado law does not require supervision; the court of appeals affirmed on the same basis.
- The Colorado Supreme Court granted certiorari, affirmed the court of appeals but on different grounds: the Governor's attestation is an opinion that effects only a federal exemption and is not a generally binding state-law interpretation subject to de novo review.
- The Court held that if the attestation is reviewable at all, review is limited (at most) to gross abuse of discretion; petitioners did not allege gross abuse, so dismissal was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue over Governor's opt-out | Petitioners: associations and members suffer direct harms (license, reputation, income, patient care) sufficient for standing | Governor: alleged injuries are too indirect/nebulous to confer individual standing | Court: Petitioners have standing based on alleged harm to licenses, reputation, income, and practice rights |
| Nature of Governor's attestation | Petitioners: attestation is a binding interpretation of Colorado law and subject to de novo judicial review | Governor: attestation is discretionary and not a binding state-law pronouncement; review limited or precluded | Court: Attestation is the Governor's assessment solely to trigger a federal exemption; not a generally binding state-law interpretation subject to de novo review |
| Reviewability of the attestation | Petitioners: attack rests on misinterpretation of state law (de novo review appropriate) | Respondents: attestation is at least minimally reviewable, if at all, and only for gross abuse of discretion | Court: If reviewable, it is only for gross abuse of discretion (mandamus standard); petitioners did not allege gross abuse, so claim fails |
| Merits whether Colorado law requires physician supervision | Petitioners: Colorado Nurse Practice Act requires physician supervision of CRNAs | Respondents: Colorado law permits CRNAs to practice without physician supervision in relevant contexts | Court: Did not decide the merits; declined de novo interpretation because the attestation does not bind state law beyond triggering the federal opt-out |
Key Cases Cited
- Hickenlooper v. Freedom from Religion Found., 338 P.3d 1002 (Colo. 2014) (standing analysis and obligation to address standing before merits)
- Meese v. Keene, 481 U.S. 465 (U.S. 1987) (government action threatening professional reputation can confer standing)
- Hunt v. Wash. State Apple Advertising Commission, 432 U.S. 333 (U.S. 1977) (association standing where government action caused business loss to members)
- Peoples Natural Gas v. Public Utilities Commission, 626 P.2d 159 (Colo. 1981) (mandamus will lie where action is arbitrary or reflects a gross abuse of discretion)
- State v. Peck, 19 P.2d 217 (Colo. 1933) (mandamus will not control exercise of discretion by compelling a particular outcome)
- California Society of Anesthesiologists v. Superior Court, 138 Cal. Rptr. 3d 745 (Cal. Ct. App. 2012) (governor's opt-out merely permits facilities to use CRNAs without jeopardizing Medicare reimbursement; review limited to palpably unreasonable or arbitrary conduct)