DEPARTMENT OF REGULATORY AGENCIES Colorado Medical Board RULE 280 - SUSPENSIONS 3 CCR 713-18 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ Introduction 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 and 12-36-104(1)(a), C.R.S. Purpose: The purpose of these rules and regulations is to provide a procedural safeguard for licensees whose licenses are to be suspended by an Inquiry Panel of the Board (“Inquiry Panel” ) pursuant to § §12-36-118(9)(a), C.R.S and 24-4-104(4), C.R.S. These rules are not intended to apply to the case of suspensions pursuant to § §12-36-118(5)(g)(III) and (IV), C.R.S. This safeguard is to be in addition to that provided by the Medical Practice Act and the Administrative Procedure Act. These rules are designed to provide a licensee an opportunity to appear before the Inquiry Panel prior to or after the ordering of a suspension to offer information or legal argument regarding whether or not the suspension should be imposed or whether or not the Inquiry Panel’s decision to suspend should be reversed after the fact. These rules are based on the understanding that the Inquiry Panel, unlike the Hearings Panel, stands in a prosecutorial rather than an adjudicatory relationship with the licensee in question. The hearing conducted in accordance with these rules may reflect this relationship. Rules and Regulations VALID INTERIM ORDER ISSUED PURSUANT TO §12-36-118(9)(A), C.R.S. An order requiring a licensee to submit to mental or physical examinations by physicians designated by the Board shall be issued by a quorum of the Inquiry Panel as defined in §12-36-118(6), C.R.S. Such order shall be issued after a finding of reasonable cause to believe that a licensee is unable to practice with reasonable skill and safety to patients because of a condition described in §12-36-117(1)(i), C.R.S. and/or12-36-117(1)(o), C.R.S. (“Reasonable Cause” ).

Reasonable cause exists when the totality of the circumstances known to the Inquiry Panel at the time of the issuance of the order warrant the reasonable and prudent belief that the licensee is unable to practice with reasonable skill and safety to patients because of a condition described in §12-36-117(1)(i) or (1)(o), C.R.S. The Inquiry Panel’s interim order of suspension shall set forth its finding of reasonable cause, as well as the facts and circumstances supporting that finding. General Authority to Suspend While it is the intention of the Board to provide pre-suspension notice and hearing where appropriate, in discharging its statutory mandate, the Board cannot commit itself to delaying the suspension in all cases as would be required by the giving of such notice and hearing. Therefore, the Board, through its Inquiry Panels, reserves the right to decide that pre-suspension notice and hearing are not appropriate on a case by case basis. Where pre-suspension notice and hearing have not been provided, a licensee shall be permitted a post-suspension hearing. The determination of whether pre-suspension notice and hearing are appropriate shall be in the sole discretion of the Inquiry Panel and shall be unreviewable. Code of Colorado Regulations 1 Pre-Suspension Notice In the event that an Inquiry Panel believes that suspension may be indicated, it shall give notice of this fact in writing by first class mail to the licensee at that person’s address of record pursuant to Board Rule 270.

Such notice shall be issued within 72 hours of the decision that suspension may be indicated (excluding interim weekends and state holidays from the calculation) and shall include the following information:

(a) 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;

(b) A statement instructing that the Inquiry Panel may suspend the licensee’s license at its next meeting;

(c) A statement that the licensee may request a hearing before the Inquiry Panel at its next meeting, but must do so prior to the Panel’s next agenda deadline;

(d) A statement informing the licensee of the next regularly scheduled agenda deadline and the date and time of the next regularly scheduled meeting;

(e) A statement informing the licensee that written material, up to a limit of 30 pages, may be submitted by the same deadline;

(f) A statement that written material submitted by this deadline will be mailed to the Inquiry Panel members prior to the meeting;

(g) A statement that written material not submitted by the agenda deadline may be presented during the hearing as set forth in these rules and regulations regarding suspensions. Post-Suspension Notice In the event that the Inquiry Panel determines that suspension without pre-suspension notice and hearing is warranted as provided above or in the event that the licensee chooses not to request a pre-suspension hearing and is subsequently suspended, the Inquiry Panel shall (1) Provide notice to the licensee of the suspension; and (2) Give notice by first class mail sent to the licensee’s address of record pursuant to Board Rule 270 of the licensee’s ability to request a post-suspension hearing. Such notice shall be issued within 72 hours of the suspension (excluding interim weekends and state holidays from the calculation) and shall include the following information:

1. (a) 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. (b) 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. (c) A statement informing the licensee of the next regularly scheduled agenda deadline and the date and time of the next regularly scheduled meeting;

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1. (d) A statement informing the licensee that written material, up to a limit of 30 pages, may be submitted by the same deadline;
2. (e) A statement that written material submitted by this deadline will be mailed to the Inquiry Panel members prior to the meeting;
3. (f) A statement that written material not submitted by the agenda deadline may be presented during the hearing as set forth in these rules and regulations regarding suspensions. 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 an Inquiry Panel meeting absent written notice to do so from Board staff. 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 §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 who may present argument and may comment on the previously submitted written material. In the discretion of the chair of the Inquiry Panel, written material not submitted by the agenda deadline may be received by the Panel at the hearing. The licensee may offer evidence through witnesses. Such testimony may be written or in person (including testimony by telephone) and need not be sworn. Cross examination of the witnesses by the Panel members or counsel for the Panel may be permitted in the discretion of the Panel chair. No hearing shall exceed thirty minutes, unless, in the discretion of the Panel 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 72 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 §12-36-118(10), 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 §24-4-102(1), C.R.S. Effective: 04/01/99; Revised: 09/30/00; Revised: 8/15/02; Effective: 10/30/02; Revised 08/191/10; Effective 10/15/10 _________________________________________________________________________ Editor’s Notes History Entire rule eff. 10/15/2010.

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