DEPARTMENT OF REGULATORY AGENCIES Board of Medical Examiners RULE 250 - COMMITTEE ON ANTICOMPETITIVE CONDUCT RULES OF PRACTICE AND PROCEDURE 3 CCR 713-13 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ BASIS AND STATUTORY AUTHORITY These rules are promulgated pursuant to sections 12-36.5-106(6) and (12), C.R.S., section 24-4-103, C.R.S, and section 24-4-105(11), C.R.S.

PURPOSE AND SCOPE These rules inform the public in general and those who are subject to the Committee's jurisdiction in particular of the following: definitions and rules of construction, variance from rules, Committee operations, bond or security requirements, procedures for review of complaints, limited and simplified discovery, ex parte communications, assessment and collection of costs, and declaratory orders. The rules affect every physician in Colorado who utilizes the review services of the Committee as established by section 12-36.5-106, C.R.S. and the professional review committees and governing boards whose final actions are subject to the Committee's review. EFFECTIVE DATE These rules are effective May 30, 1990. These rules supersede the emergency rules which were readopted by the Committee on April 2, 1990.

RULE 1: DEFINITIONS AND RULES OF CONSTRUCTION (a) In addition to the definitions set forth in section 12-36.5-102, C.R.S., as used in these rules, unless the context requires otherwise:

1. (1) “Committee” means the Committee on Anticompetitive Conduct created by section 12-36.5- 106, C.R.S.
2. (2) “Administrator” means the Committee's Administrative Officer or if designated by the Administrative Officer, his staff.
3. (3) “Complainant” means a physician licensed under article 36, title 12, C.R.S., who files a verified complaint with the Committee pursuant to the provisions of section 12-36.5-106, C.R.S.
4. (4) “Day” means calendar day unless expressly identified as business day.

(b) The following rules of construction apply to these rules unless the context requires otherwise:

1. (1) Words of the masculine gender include the feminine and the neuter. Code of Colorado Regulations 1 (2) Words in the singular include the plural, and the plural includes the singular.
2. (3) In computing a period of days, the first day is excluded and the last day is included. If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday. RULE 2: VARIANCE FROM RULES The Committee may permit variance from these rules which is not contrary to law and for good cause shown, or if it finds compliance therewith to be impossible, impractical or unreasonable. RULE 3: COMMITTEE OPERATIONS

(a) Rules of Committee Organization The Committee's transaction of official business shall be governed by rules of Committee organization, which address such matters as preparation of agendas and minutes of Committee meetings. The rules of Committee organization are available for public inspection and copying at the Committee's office.

(b) Filing of Pleadings and Other Papers Pleadings, requests or other papers or documents required or permitted to be filed must be received for filing at the Committee's office, which at the time of adoption of these rules is 1560 Broadway, Suite 775, Denver, Colorado 80202-5140, during normal business hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. Answers, pleadings, and other papers filed in a Committee review proceeding shall contain the case number assigned to the complaint.

(c) Copies Parties shall file the original and seven copies of all pleadings, requests or other papers or documents required or permitted to be filed with the Committee.

RULE 4: DISQUALIFICATION OF A COMMITTEE MEMBER (a) Any member of the Committee who has participated in the course of the review proceeding regarding a physician who submits a complaint to the Committee regarding that specific professional review may not be a part of the Committee review of the complaint.

(b) Any Committee member who cannot be impartial in the determination of or who has an immediate personal, private, or financial interest in a matter before the Committee shall inform the Committee and shall not participate in any Committee deliberation or vote on the matter. No Committee member who previously supervised or directed a physician who is the subject of a Committee review proceeding shall participate in Committee deliberations or votes with respect to that physician.

(c) Committee members will receive an agenda in advance and must notify the chairman or his designee prior to the meeting that he will not be eligible to hear a specific case or to participate in Committee deliberations or votes regarding that case should the circumstances in Rule 4 (a) or

1. (b) arise.

(d) Upon the filing in good faith by any party to a Committee review proceeding of a timely and sufficient affidavit of personal bias of a Committee member, the Committee shall forthwith rule upon the allegations in such affidavit as part of the record in this case. RULE 5: BOND OR SECURITY REQUIREMENTS Code of Colorado Regulations 2 (a) A cash bond, certified check, irrevocable letter of credit in the form prescribed by the Committee, or an acceptable equivalent liquid security of three thousand dollars must be posted by the complainant before a complaint will be processed.

(b) A case number will be assigned to each complaint. Committee expenses associated with each case will be charged to that number and collected out of the three thousand dollars posted by the losing party, or as the Committee deems appropriate in accordance with section 12-36.5-106(11), C.R.S. Committee expenses in excess of three thousand dollars shall be assessed against and collected from the losing party, or as the Committee deems appropriate, in accordance with section 12-36.5-106(11), C.R.S.

(c) A cash bond, certified check, irrevocable letter of credit in the form prescribed by the Committee, or an acceptable equivalent liquid security of three thousand dollars shall be posted by the governing board, within thirty days of receipt of service of a complaint on a governing board, or concurrently with the filing an answer, whichever is earlier. RULE 6: PROCEDURES FOR REVIEW OF COMPLAINTS (a) Complaints for Review of Final Action by a Governing Board.

(1) The verified complaint for review of final action by a governing board shall set forth a short and plain statement of the grounds upon which the Committee's jurisdiction depends, including:

1. (A) The type of organization specified in section 12-36.5-104 (3), (4) or (5), C.R.S. whose final action of its governing board is the subject of the complaint;
2. (B) That the professional review committee and governing board specified in section 12-36.5- 104(4) or (5), C.R.S. operate pursuant to written by-laws, policies, or procedures which are in compliance with article 36.5, title 12, C.R.S.;
3. (C) That the final action of the governing board involved at least one of the following subjects: qualifications of a member physician; quality of patient care; appropriateness of patient care; or the professional conduct of a member physician;
4. (D) That the final action of the governing board resulted in the denial, termination, or restriction of privileges at, or membership in, or participation in the organization;
5. (E) The date that complainant received notice of final action by the governing board which is the subject of the complaint.

(2) When a complainant is without direct knowledge, allegations may be made upon information and belief.

(b) Default.

Failure of a professional review committee and governing board to file an answer within the time provided shall constitute a waiver of the right to contest the allegations in the complaint.

(c) Designation and Transmission of Records.

(1) At the time of filing his complaint, the complainant shall designate those portions of the records as defined by section 12-36.5-102(4), C.R.S., of the professional review committee or governing board whose final action is the subject of the complaint, and upon which complainant relies to support his allegation that such final action resulted from unreasonable anticompetitive conduct. Code of Colorado Regulations 3 (2) At the time of filing its answer, the professional review committee or governing board shall file those portions of the records designated by complainant, together with a certificate of authenticity. At that time, the professional review committee or governing board may also file a statement designating portions of its records as defined by section 12-36.5-102(4), C.R.S. upon which it relies in defending the complaint, together with the records so designated, and a certificate of authenticity. Seven copies of all records designated by each party shall be filed with the Committee. The cost of preparing the records shall be paid by the party designating such records.

(3) The Administrator as designee of the Committee may grant a request for extension of time within which a governing board or professional review committee may file records pursuant to this Rule 6 (c), but not to exceed an additional thirty days. Such request from the governing board or professional review committee must be in writing and made on or before the time of filing its answer, and the request must state good cause for the extension of time.

(4) Whether or not designated by a party, within the time allowed by Rule 6 (c), the governing board shall file seven copies of the written by-laws, policies or procedures for the professional review committee and governing board which are required to comply with article 36.5, title 12, C.R.S.

(d) Motion Practice.

To the extent practicable, the Colorado rules of civil procedure apply to matters before the Committee. Responses to motions may be filed with the Committee and served upon the adverse party within ten days of the date of service of the motion. An additional three days for filing and service of a response is permitted when the motion is served by mail.

(e) Hearing on the Complaint.

(1) If neither the complaint nor answer alleges specific facts in addition to those disclosed in the records of the professional review committee or governing board, oral argument shall be heard within a reasonable time. Each party may file a brief no later than fifteen days prior to the date set for oral argument. Briefs shall be double spaced and shall not exceed fourteen pages.

(2) If either the complaint or answer alleges specific facts in addition to those disclosed in the records of the professional review committee or governing board, the Committee shall conduct an evidentiary hearing pursuant to the provisions of section 12-36.5-106(9), C.R.S. Each party may file a brief no later than fifteen days prior to the date of the hearing. Briefs shall be double spaced and shall not exceed fourteen pages.

RULE 7: LIMITED AND SIMPLIFIED DISCOVERY (a) Scope of Discovery.

The parties may obtain discovery regarding any matter, not privileged, which is relevant to any additional fact alleged in the complaint or answer regarding unreasonable anticompetitive conduct and which is not disclosed in the record of the professional review committee or governing board, except when, in the discretion of the Committee, the interests of a fair hearing demand otherwise.

(b) Methods of Discovery (1) A party may take the depositions of three persons. The manner of proceeding by way of deposition and the use thereof shall be governed by C.R.C.P. 26, 28, 29, 30, 31, 32, and 45, to the extent practicable. Reasonable notice for the taking of depositions shall not be less than five business days.

Code of Colorado Regulations 4 (2) A party may serve one set of written interrogatories upon the adverse party. The scope and manner of proceeding by way of interrogatories and the use thereof shall be governed by C.R.C.P. 26 and 33 to the extent practicable, except that the number of interrogatories to any party shall not exceed thirty (30), each of which shall consist of a single question. Interrogatories and responses thereto shall not be filed with the Committee.

(3) A party may serve one set of requests for production of documents upon the adverse party. The scope and procedure regarding requests for production of documents shall be governed by C.R.C.P. 26 and 34 to the extent practicable, except that the number of requests for production of documents to any party shall not exceed ten (10). Requests for production of documents and responses thereto shall not be filed with the Committee.

(4) A party may serve upon the adverse party one set of requests for admissions which shall not exceed twenty (20) in number, each of which shall consist of a single request. The scope and manner of proceeding by way of requests for admissions and the use thereof shall be governed by C.R.C.P. 36 to the extent practicable. Requests for admissions and responses thereto shall not be filed with the Committee.

(c) Continuing Duty to Disclose.

Every party is under a continuing duty to timely supplement or amend responses in accordance with C.R.C.P. 26(e).

(d) Deposition of Unavailable Witness.

A party may take the testimony of any person by deposition upon stipulation, or pursuant to order of the Committee, if the Committee determines that there is a reasonable likelihood that the person will be unavailable as a witness at the hearing, and that the testimony of such person is necessary to a claim or defense of any party. Such order may be made only on motion for good cause shown and upon notice to the person to be deposed and to the adverse party.

(e) Motions for Protective Orders or for Orders Compelling Discovery.

(1) Pending resolution of any motion under C.R.C.P. 26(c), the filing of the motion shall stay the discovery at which the motion is directed.

(2) Motions under C.R.C.P. 26(c) and 37(a) shall set forth the interrogatory, request, question or response constituting the subject matter of the motion.

(3) The Committee will not entertain any motion under C.R.C.P. 37(a), unless counsel for the moving party has conferred or made reasonable effort to confer with opposing counsel concerning the matter in dispute before the filing of the motion. Counsel for the moving party shall certify his compliance with this rule at the time the motion under C.R.C.P. 37(a) is filed.

(e) Sanctions.

If any party fails to comply with the provisions of this Rule 7, the Committee may impose sanctions upon such party pursuant to C.R.C.P. 37, to the extent permitted by law. RULE 8: EX PARTE COMMUNICATIONS A party or counsel for a party in a review proceeding pending before the Committee shall not initiate any oral communiation with any member of the Committee unless prior consent of the adverse party or his counsel has been obtained. Copies of all pleadings, correspondence and other papers concerning a Code of Colorado Regulations 5 review proceeding pending before the Committee which are filed with the Committee shall be served upon the adverse party or his counsel.

RULE 9: ASSESSMENT AND COLLECTION OF COSTS (a) Withdrawn Complaints.

If a complainant notifies the Committee that he wishes to withdraw the complaint, the review proceeding shall end unless the Committee determines in its discretion that the medical practice of the complainant constitutes a clear and present danger to patients and then it shall take action by referring the matter to the Board of Medical Examiners according to section 12-36.5-106 (9)(n), C.R.S. The Committee shall assess and collect all Committee costs incurred until the time of withdrawal of said complaint against the complainant unless Rule 9 (c) also applies.

(b) Complaints Dismissed Prior to Hearing.

If the Committee dismisses a complaint pursuant to section 12-36.5-106(9)(e), C.R.S., upon a finding of no probable cause, or lack of jurisdiction, the Committee may in its discretion assess and collect all Committee costs incurred up to that time against the complainant.

(c) Remand of Case to Governing Board.

If the Committee finds that the record of the governing board is insufficient to permit the Committee to reach appropriate findings with regard to unreasonable anticompetitive conduct, and it remands the case for further review by the governing board pursuant to section 12-36.5-106 (9)(m), C.R.S., any additional expenses incurred by the Committee as a result of this action shall be assessed against the governing board or as the Committee deems appropriate.

RULE 10: DECLARATORY ORDERS (a) Any person may petition the Committee for a declaratory order to terminate a controversy or to remove uncertainty as to the applicability to petitioner of any statutory provision or of any rule or order of the Committee.

(b) A petition filed pursuant to this rule shall set forth the following:

1. (1) The name and address of the petitioner and whether the petitioner is a physician licensed under article 36, title 12, C.R.S.
2. (2) The statute, rule or order to which the petition relates.
3. (3) A concise statement of all facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule, or order in question applies or potentially applies to the petitioner. Petitioner may also include a concise statement of the legal authorities upon which he relies.

(c) The Committee will determine, in its discretion and without notice to petitioner, whether to rule upon a petition. In determining whether to rule upon a petition, the Committee will consider the following matters, among others:

1. (1) Whether a ruling on the petition will terminate controversy or remove uncertainty as to the applicability to petitioner of any statute, Committee rule or order;
2. (2) Whether the petition involves any subject or issue that is currently pending before the Committee, any other agency or court;

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1. (3) Whether the petition seeks a ruling on a moot question, or an advisory ruling on a hypothetical issue.
2. (4) Whether the petitioner has some other adequate legal remedy which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule, or order in question.

(d) If the Committee determines, in its discretion, that it will not rule upon the petition pursuant to this rule, the Committee shall promptly notify the petitioner of its action and state the reasons for such action.

(e) If the Committee determines, in its discretion, that it will rule upon the petition, it may take one or more of the following actions, in its discretion:

1. (1) The Committee may rule upon the petition without a hearing on the basis of:
   1. (A) the matters stated in the petition; or, (B) verified affidavits submitted pursuant to Committee order; or, (C) written briefs citing legal authority and argument submitted pursuant to Committee order.
2. (2) The Committee may hold either an evidentiary or a non-evidentiary hearing upon the petition after giving notice to petitioner. Evidentiary hearings shall be conducted pursuant to the provisions of section 24-4-105, C.R.S., and these rules to the extent applicable.

(f) If the Committee determines that the petition addresses a matter within the jurisdiction of any other agency, the Committee shall refer the petition to the other agency for consideration. If the Committee refers a petition to another agency, the Committee shall promptly inform the petitioner of the referral.

(g) Any person who claims an interest which may be affected by the declaratory order may seek leave of the Committee to intervene in such a proceeding. A petition to intervene shall set forth the matters required by subsection (b) of this rule. Based on the information presented, the Committee may, in its discretion, grant leave to intervene. Any reference to “petitioner” in this rule includes any person who has been granted leave to intervene by the Committee.

(h) Notwithstanding any provision of this rule, the Committee shall not refer a petition to another agency, grant any intervention, or take any action which would breach the confidentiality of the records of a professional review committee or governing board as provided by section 12-36.5-104(10), C.R.S.

(i) Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute final agency action subject to judicial review pursuant to section 24-4-106, C.R.S. _________________________________________________________________________ Editor’s Notes History Annotations Code of Colorado Regulations 7 The Committee on Anticompetitive Conduct (CAC) regulations limits the scope of the CAC's jurisdiction. CAC was not intended to be the repository of all claims of anticompetitive conduct between a physician and a hospital. As a result, the CAC's jurisdiction encompasses only antitrust allegations arising out of adverse decisions regarding physician competency. Ryals v. St. Mary-Corwin Regional Med. Ctr., 10 P.3d 654 (2000).

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