Doe v. Colorado Department of Public Health and Environment, 2019 CO 92

After a 2013 State Auditor report flagged weak controls over access to Colorado medical-marijuana registry cards, CDPHE staff developed a written Referral Policy (Medical Marijuana Policy No. 2014-01) to guide referrals of physicians to the Colorado Medical Board for possible misconduct.
CDPHE staff consulted with Medical Board staff (but not Board members) in meetings and calls that were not announced to the public; the resulting Policy set non-binding thresholds (e.g., high caseload, percent recommending increased plant counts, patient age mix) to identify physicians who "may be recommended for referral."
Relying on that Policy, CDPHE referred nine physicians to the Medical Board; the Board notified the physicians and requested responses, prompting litigation by the physicians challenging the Policy and the referrals as violations of the Open Meetings Law (OML) and the State Administrative Procedure Act (APA).
The district court ruled for the physicians on OML and APA claims; the court of appeals reversed as to CDPHE, holding CDPHE was not a "state public body," the Policy was interpretive, and referrals were not final agency action. The Colorado Supreme Court granted certiorari.
The Supreme Court affirmed the court of appeals: (1) a whole state agency is not a "state public body" under the OML; (2) the Referral Policy is interpretive (not legislative) and thus exempt from APA rulemaking; and (3) CDPHE referrals were not final agency actions subject to APA review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an entire state agency (CDPHE) is a "state public body" under the OML	CDPHE staff meetings with Board staff developed the Policy without public notice, so OML applies and was violated	OML applies to boards/committees/commissions or other bodies of a state agency, not to an agency as a whole	CDPHE is not a "state public body"; OML did not apply to the agency as a whole
Whether the Referral Policy is a legislative rule subject to APA rulemaking	Policy creates binding standards that change rights/obligations, so APA rulemaking required	Policy is guidance/interpretive—lists factors CDPHE may consider and is permissive, not binding	Policy is interpretive (advisory) and exempt from APA rulemaking requirements
Whether CDPHE's referrals to the Medical Board were "final agency action" under the APA	Referrals consummated CDPHE decision-making and had legal effect, so they are reviewable final actions	Referrals merely initiate the Board's investigatory/disciplinary process and impose no legal consequence; finality rests with Board action	Referrals were not final agency actions; they did not determine rights/obligations or produce legal consequences and are not APA-reviewable

Regular Route Common Carrier Conference of the Colo. Motor Carriers Ass'n v. Pub. Utils. Comm'n, 761 P.2d 737 (Colo. 1988) (distinguishes interpretive rules from legislative rules and explains factors agency guidance may set without binding effect)
Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (articulates two-part test for final agency action under APA)
MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010) (applies finality framework to local government decisions)
Chittenden v. Colo. Bd. of Soc. Work Exam'rs, 292 P.3d 1138 (Colo. App. 2012) (discusses finality and reviewability under Colorado law)
Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) (explains when policy language merely reminds parties of existing duties and is interpretive)
Hammond v. Pub. Emps.' Ret. Ass'n, 219 P.3d 426 (Colo. App. 2009) (examines when an internal policy is legislative because it mandates a particular result)