(1) (a) The president of the board shall divide those members of the board other than the president into two panels of six members each, four of whom shall be physician members.
Each panel shall act as both an inquiry and a hearings panel. Members of the boardmay be assigned from one panel to the other by the president. The president may be a member of both panels, but in no event shall the president or any other member who has considered a complaint as a member of a panel acting as an inquiry panel take any part in the consideration of a formal complaint involving the same matter.
All matters referred to one panel for investigation shall be heard, if referred for formal hearing, by the other panel or a committee of that panel. However, in its discretion, either inquiry panel may elect to refer a case for formal hearing to a qualified administrative law judge in lieu of a hearings panel of the board, for an initial decision pursuant to section 24-4-105.
The initial decision of an administrative law judge may be reviewed pursuant tosection 24-4-105 (14) and (15) by the filing of exceptions to the initial decision with the hearings panel that would have heard the case if it had not been referred to an administrative law judge or by review upon the motion of the hearings panel. The respondent or the board's counsel shall file the exceptions.
Investigations shall be under the supervision of the panel to which they are assigned.The persons making the investigation shall report the results thereof to the assigning panel for appropriate action.
In the discharge of its duties, the board may enlist the assistance of other licensees.Licensees have the duty to report to the board any licensee known, or upon information and belief, to have violated any of the provisions of section 12-240-121 (1); except that a licensee who is treating another licensee for a behavioral, mental health, or substance use disorder or the excessive use of any habit-forming drug, shall not have a duty to report his or her patient unless, in the opinion of the treating licensee, the impaired licensee presents a danger to himself, herself, or others.
(a) (I) Written complaints relating to the conduct of a licensee licensed or authorized to practice medicine in this state may be made by any person or may be initiated by an inquiry panel of the board on its own motion. The licensee complained of shall be given notice by firstclass mail of the nature of the complaint and shall be given thirty days to answer or explain in writing the matters described in such complaint. Upon receipt of the licensee's answer or at the conclusion of thirty days, whichever occurs first, the inquiry panel may take further action as set forth in subsection (4)(a)(II) of this section.
(II) The inquiry panel may then conduct a further investigation, which may be made by one or more members of the inquiry panel, one or more licensees who are not members of the board, a member of the staff of the board, a professional investigator, or any other person or organization as the inquiry panel directs. The investigation shall be entirely informal.
(b) The board shall cause an investigation to be made when the board is informed of:
Disciplinary actions taken by hospitals to suspend or revoke the privileges of a physician and reported to the board pursuant to section 25-3-107;
Disciplinary actions taken as a result of a professional review proceeding pursuant topart 2 of article 30 of this title 12 against a physician. Disciplinary actions shall be promptly reported to the board.
An instance of a medical malpractice settlement or judgment against a licenseereported to the board pursuant to section 10-1-120; or
Licensees who have been allowed to resign from hospitals for medical misconduct.
Hospitals shall report the resignation.
(c) On completion of an investigation, the inquiry panel shall make a finding that:
The complaint is without merit and no further action need be taken with referencethereto;
There is no reasonable cause to warrant further action with reference thereto;
There is an instance of conduct that does not warrant formal action by the board andshould be dismissed, but the inquiry panel has noticed indications of possible errant conduct by the licensee that could lead to serious consequences if not corrected. In this case, the board shall send a confidential letter of concern in accordance with section 12-20-404 (5) to the licensee against whom the complaint was made.
There is an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit. In this case, the board may issue and send a letter of admonition to the licensee in accordance with section 12-20-404 (4).
The investigation discloses facts that warrant further proceedings by formal complaint, as provided in subsection (5) of this section. In this case, the complaint shall be referred to the attorney general for preparation and filing of a formal complaint.
(d) All proceedings pursuant to this subsection (4) shall be expeditiously and informally conducted so that no licensee is subjected to unfair and unjust charges and that no complainant is deprived of his or her right to a timely, fair, and proper investigation of his or her complaint.
(5) (a) All formal complaints shall be heard and determined in accordance with subsection (5)(b) of this section and section 24-4-105. Except as provided in subsection (1) of this section, all formal hearings shall be conducted by the hearings panel. The licensee may be present in person and by counsel, if so desired, to offer evidence and be heard in his or her own defense. At formal hearings, the witnesses shall be sworn and a complete record shall be made of all proceedings and testimony.
Except as provided in subsection (1) of this section, an administrative law judge shallpreside at the hearing and shall advise the hearings panel, as requested, on legal matters in connection with the hearing. The administrative law judge shall provide advice or assistance as requested by the hearings panel in connection with its preparations of its findings and recommendations or conclusions to be made. The administrative law judge may act in accordance with section 12-20-403 and perform other duties as authorized by the hearings panel.
(I) To warrant a finding of unprofessional conduct, the charges shall be established asspecified in section 24-4-105 (7). Except as provided in subsection (1) of this section, the hearings panel shall make a report of its findings and conclusions that, when approved and signed by a majority of those members of the hearings panel who have conducted the hearing pursuant to subsections (5)(a) and (5)(b) of this section, shall be and become the action of the board.
If it is found that the charges are unproven, the hearings panel, or an administrativelaw judge sitting in lieu of the hearings panel pursuant to subsection (1) of this section, shall enter an order dismissing the complaint.
If the hearings panel finds the charges proven and orders that discipline be imposed,it shall also determine the extent of the discipline, which must be in the form of a letter of admonition, suspension for a definite or indefinite period, or revocation of license to practice. The hearings panel also may impose a fine of up to five thousand dollars per violation. In determining appropriate disciplinary action, the hearings panel shall first consider sanctions that are necessary to protect the public. Only after the panel has considered sanctions may it consider and order requirements designed to rehabilitate the licensee or applicant. If discipline other than revocation of a license to practice is imposed, the hearings panel may also order that the licensee be granted probation and allowed to continue to practice during the period of probation. The hearings panel may also include in any disciplinary order that allows the licensee to continue to practice such conditions as the panel may deem appropriate to assure that the licensee is physically, mentally, morally, and otherwise qualified to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant in accordance with generally accepted professional standards of practice, including any or all of the following:
Submission by the respondent to such examinations as the hearings panel may orderto determine the respondent's physical or mental condition or the respondent's professional qualifications;
Taking by the respondent of therapy or courses of training or education as may beneeded to correct deficiencies found either in the hearing or by the examinations;
Review or supervision of the respondent's practice as may be necessary to determinethe quality of the respondent's practice and to correct deficiencies therein; and
The imposition of restrictions upon the nature of the respondent's practice to assurethat the respondent does not practice beyond the limits of the respondent's capabilities.
Upon the failure of the licensee to comply with any conditions imposed by thehearings panel pursuant to subsection (5)(c)(III) of this section, unless due to conditions beyond the licensee's control, the hearings panel may order suspension of the licensee's license to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant in this state until the licensee complies with the conditions.
In making any of the orders provided in subsections (5)(c)(III) and (5)(c)(IV) of thissection, the hearings panel may take into consideration the licensee's prior disciplinary record. If the hearings panel does take into consideration any prior discipline of the licensee, its findings and recommendations shall so indicate.
In all cases of revocation, suspension, or probation, the board shall enter in its records the facts of the revocation, suspension, or probation and of any subsequent action of the board with respect thereto.
In all cases involving alleged violations of section 12-240-121 (1)(dd), the boardshall promptly notify the executive director of the department of public health and environment of its findings, including whether it found that the physician violated section 12-240-121 (1)(dd) and any restrictions it placed on the physician with respect to recommending the use of medical marijuana.
The attorney general shall prosecute those charges that have been referred to theattorney general by the inquiry panel pursuant to subsection (4)(c)(V) of this section. The board may direct the attorney general to perfect an appeal.
The two-year waiting period specified in section 12-20-404 (3) applies to any personwhose license to practice medicine, to practice as a physician assistant, to practice as an anesthesiologist assistant, or to practice any other health care occupation is revoked by the board, another applicable regulator, or any other legally qualified board or regulatory entity.
A majority of the members of the board, three members of the inquiry panel, or threemembers of the hearings panel shall constitute a quorum. The action of a majority of those present comprising a quorum shall be the action of the board, the inquiry panel, or the hearings panel.
If any licensee is determined to be mentally incompetent or insane by a court ofcompetent jurisdiction and a court enters, pursuant to part 3 or 4 of article 14 of title 15 or section 27-65-109 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of continuing to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant, the board shall automatically suspend his or her license, and, anything in this article 240 to the contrary notwithstanding, the suspension must continue until the licensee is found by the court to be competent to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant.
(a) If the board has reasonable cause to believe that a licensee is unable to practice with reasonable skill and safety to patients because of a condition described in section 12-240121 (1)(e) or (1)(i), it may require the licensee to submit to mental or physical examinations by physicians designated by the board. If a licensee fails to submit to the mental or physical examinations, the board may suspend the license until the required examinations are conducted.
Every licensee shall be deemed, by practicing or by applying for annual registrationof the person's license, to have consented to submit to mental or physical examinations when directed in writing by the board. Further, the person shall be deemed to have waived all objections to the admissibility of the examining physician's testimony or examination reports on the ground of privileged communication. Subject to applicable federal law, the licensee shall be deemed to have waived all objections to the production of medical records to the board from health care providers that may be necessary for the evaluations described in subsection (8)(a) of this section.
The results of any mental or physical examination ordered by the board shall not beused as evidence in any proceeding other than before the board.
(9) (a) Investigations, examinations, hearings, meetings, or any other proceedings of the board conducted pursuant to this section shall be exempt from any law requiring that proceedings of the board be conducted publicly or that the minutes or records of the board with respect to action of the board taken pursuant to this section be open to public inspection. This subsection (9) shall not apply to investigations, examinations, hearings, meetings, or any other proceedings or records of the licensing panel created pursuant to section 12-240-116 related to the unlicensed practice of medicine.
(b) For purposes of the records related to a complaint filed pursuant to this section against a licensee, the board is considered a professional review committee, the records related to the complaint include all records described in section 12-30-202 (8), and section 12-30-204 (12) applies to those records.
A licensee who, at the request of the board, examines another licensee shall beimmune from suit for damages by the person examined if the examining person conducted the examination and made his or her findings or diagnosis in good faith.
Within thirty days after the board takes final action, which is of public record, torevoke or suspend a license or to place a licensee on probation based on competence or professional conduct, the board shall send notice of the final action to any hospital in which the licensee has clinical privileges, as indicated by the licensee.
The board may issue cease-and-desist orders under the circumstances and in accordance with the procedures specified in section 12-20-405; except that the board: (a) May also issue a cease-and-desist order on its own motion; and
(b) May only issue a cease-and-desist order when it appears that a licensee is acting in a manner that is an imminent threat to the health and safety of the public.
(13) If a physician has a restriction placed on his or her license, the restriction shall, if practicable, state whether the restriction prohibits the physician from making a medical marijuana recommendation.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1195, § 1, effective October 1; (4)(c)(IV) amended, (SB 19-193), ch. 406, p. 3589, § 14, effective October 1.
Editor's note: (1) This section is similar to former § 12-36-118 as it existed prior to 2019; except that § 12-36-118 (3)(b) was relocated to § 12-20-402.
(2) Before its relocation in 2019, this section was amended in SB 19-193. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from July 1, 2019, to October 1, 2019, see SB 19-193, chapter 406, Session Laws of Colorado 2019.