v. Colorado Medical Board

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ADVANCE SHEET HEADNOTE
November 12, 2019
2019 CO 94No. 18SC331, Boland v. Colorado Medical Board—Administrative Law—Colorado
Medical Board—Disciplinary Procedures—Subpoenas.
In this companion case to Colorado Medical Board v. McLaughlin, 2019 CO 93,
__ P.3d __, which the supreme court also decides today, the court is again asked
to determine whether an investigative subpoena issued by the Colorado Medical
Board (the “Board”) can have a lawfully authorized purpose if the investigation
was prompted by a complaint made by the Colorado Department of Public Health
and Environment (the “CDPHE”) pursuant to a policy that violated the Open
Meetings Law (the “OML”) or the State Administrative Procedure Act (the
“APA”).
For the reasons articulated in McLaughlin, ¶¶ 22–37, the court concludes that
because the CDPHE, as a state agency and not a “state public body,” could not
violate the OML and did not violate the APA in developing the policy at issue or
in referring doctors to the Board under that policy, the petitioner’s argument that
the investigative subpoena lacked a lawfully authorized purpose because it was
based on a policy that violated the OML and the APA is based on a flawed premise
and is therefore unpersuasive. Even if the CDPHE’s adoption of the policy at issue
and its reliance on it were invalid, however, the court concludes that the Board’s
investigative subpoena had a lawfully authorized purpose because it was issued
pursuant to the Board’s statutory authority to investigate allegations of
unprofessional conduct and was properly tailored to that purpose.
Accordingly, the court affirms the judgment of the division below and
remands this case for further proceedings consistent with this opinion.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 94Supreme Court Case No. 18SC331
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA1269
Petitioner:
James Boland, M.D.,
v.
Respondent:
Colorado Medical Board.
Judgment Affirmed
en banc
November 12, 2019
Attorneys for Petitioner:
Hershey Decker Drake
Carmen N. Decker
Kaylyn Peister
Lone Tree, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Ashley E. Moller, Senior Assistant Attorney General
Sierra R. Ward, Senior Assistant Attorney General
Denver, Colorado
Maxfield Gunning, LLP
Eric H. Maxfield
Boulder, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
2
¶1 In this companion case to Colorado Medical Board v. McLaughlin, 2019 CO 93,
__ P.3d __, which we are also announcing today, we are again asked to determine
whether an investigative subpoena issued by the Colorado Medical Board (the
“Board”) can have a lawfully authorized purpose if the investigation was
prompted by a complaint made by the Colorado Department of Public Health and
Environment (the “CDPHE”) pursuant to a policy that violated the Open Meetings
Law (the “OML”) or the State Administrative Procedure Act (the “APA”).1
¶2 For the reasons articulated in McLaughlin, ¶¶ 22–37, we conclude that
(1) because the CDPHE, as a state agency and not a “state public body,” could not
violate the OML and did not violate the APA in developing the policy at issue or
in referring doctors to the Board under that policy, James Boland’s argument that
the investigative subpoena lacked a lawfully authorized purpose because it was
based on a policy that violated the OML and the APA is based on a flawed premise
and is therefore unpersuasive and (2) even if the CDPHE’s adoption of the policy
at issue and its reliance on it were invalid, the Board’s investigative subpoena
1 We granted certiorari to review the following issue:
Whether an agency investigative subpoena can have a lawfully
authorized purpose even if the investigation was prompted by a
complaint from a different agency under a referral policy that violated
the Open Meetings Law or Administrative Procedure Act.
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nonetheless had a lawfully authorized purpose because it was issued pursuant to
the Board’s statutory authority to investigate allegations of unprofessional
conduct and was properly tailored to that purpose.
¶3 Accordingly, we affirm the judgment of the division below and remand this
case for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶4 Boland is a physician licensed to practice medicine in Colorado. He
primarily examines patients to determine if they would benefit from the use of
medical marijuana.
¶5 Information related to medical marijuana in Colorado is maintained by the
CDPHE in a confidential registry that includes the names of all patients who have
applied for and are entitled to receive a marijuana registry identification card, as
well as the names and contact information for the patients’ physicians and, if
applicable, their primary caregivers. Colo. Const. art. XVIII, § 14(3)(b); Dep’t of
Pub. Health and Env’t, 5 Colo. Code Regs. 1006-2:1(A) (2019). If the CDPHE has
reasonable cause to believe that a physician has violated either section 14 of article
XVIII of the state constitution, section 25-1.5-106(5)(a)–(c), C.R.S. (2019), or the
rules promulgated by the CDPHE pursuant to section 25-1.5-106(3), all of which
govern physicians who certify medical conditions for applicants to the medical
marijuana program, then the CDPHE may refer the matter to the Board for an
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investigation and determination. § 25-1.5-106(6); 5 Colo. Code Regs. 1006-2:8(B)
(2019).
¶6 In May 2014, the CDPHE implemented Medical Marijuana Policy
No. 2014-01 (“the Referral Policy”). The Referral Policy provides that the CDPHE
will use its statistical reviews of physician medical marijuana recommendations to
determine whether reasonable cause exists to refer a physician to the Board for
investigation. Factors to be considered include (1) whether a physician has a high
caseload, as determined by the number of patients for whom medical marijuana is
recommended (a high caseload is calculated as 3,521 or more patient
recommendations in one year); (2) whether a physician recommended increased
plant counts for more than thirty percent of his or her caseload; and (3) whether
more than one-third of the physician’s patient caseload is under the age of thirty.
¶7 In June 2014, the CDPHE referred Boland to the Board for investigation
based on his “[h]igh plant count recommendations and high percent of patients
under age of 30 [sic] for medical marijuana referrals.” Thereafter, the Board sent
Boland a letter informing him that it had received “concerning information”
regarding his conduct as a licensed physician, specifically involving a possible
violation of the Colorado Medical Practice Act, §§ 12-240-101 to -145, C.R.S.
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(2019).2 The letter explained that the Board was required by law to investigate the
complaint, which the Board noted had been initiated by the CDPHE pursuant to
the Referral Policy. The Board thus requested that Boland send a written response
to the allegations within thirty days and further indicated that it would be issuing
a subpoena for pertinent patient records relating to the complaint. The Board then
sent Boland a subpoena ordering him to produce complete medical records for any
and all patients aged thirty and younger who were examined on three specifically
identified dates.
¶8 Boland refused to comply with the subpoena, and he and several other
physicians whom the CDPHE had referred to the Board and who had received
subpoenas from the Board filed suit in the Denver District Court, seeking, among
other things, to enjoin the Board from enforcing its subpoenas. As grounds
therefor, the physicians alleged, among other things, that the CDPHE and the
Board violated the OML when they adopted the Referral Policy and that any
referrals based thereon were unfounded. 3
2Effective October 1, 2019, the Colorado Medical Practice Act was relocated from
article 36 of title 12 to article 240 of the same title. For convenience, we will cite
the Act in accordance with its current location in the Colorado Revised Statutes.
3This case ultimately resulted in our opinion in Doe v. Colorado Department of Public
Health & Environment, 2019 CO __, __ P.3d __, which we are also announcing
today.
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¶9 At about the same time, the Board filed the present action, seeking to enforce
the subpoena against Boland. Boland filed an opposition brief in which he argued,
as pertinent here, that the Referral Policy was developed in violation of the OML
and that any action taken pursuant to that Policy was void. In light of these alleged
facts, Boland asserted that the Board’s investigation was not initiated for a lawfully
authorized purpose and that therefore the subpoena should not be enforced.
¶10 The district court subsequently granted the Board’s motion to enforce the
subpoena. As pertinent here, the court found that (1) any injunctive relief granted
by the district court in the Doe action would bind only the CDPHE and not the
Board; (2) the Colorado Medical Practice Act vests the Board with the authority to
conduct investigations and issue administrative subpoenas regarding those
investigations; and (3) the Board has a statutory duty to investigate licensed
physicians who engage in unprofessional conduct, including a failure to meet
generally accepted standards of conduct. The court concluded, “Given the broad
purpose set forth in the statute, as well as the statutory duty imposed on [the
Board] to investigate a physician whose actions fall below the generally accepted
standard of medical practice, the court finds that the subpoena was issued for a
lawfully authorized purpose.”
¶11 Boland appealed this order, and in a divided, published opinion, a division
of the court of appeals affirmed. Colo. Med. Bd. v. Boland, 2018 COA 39, __ P.3d __.
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In so ruling, the majority began by assuming, for purposes of the appeal, that the
CDPHE had adopted the Referral Policy in violation of the OML. Id. at ¶ 30. The
majority concluded, however, that the CDPHE’s conduct did not determine
whether the Board acted lawfully in issuing the subpoena to Boland. Id. at ¶ 33.
Instead, the division looked to the Board’s statutory duties under the Colorado
Medical Practice Act and concluded, “The Board received a complaint, gave
Dr. Boland an opportunity to respond, which he did, and then issued the
subpoena. The purpose of the investigation is to ascertain whether he acted
unprofessionally. Under these circumstances, we conclude the Board subpoena
had a lawful purpose.” Id. at ¶ 39.
¶12 In reaching this conclusion, the majority distinguished this court’s decision
in Board of Medical Examiners v. Duhon, 895 P.2d 143 (Colo. 1995), in which we had
invalidated a Board subpoena. Boland, ¶¶ 37–39. The majority observed that
Duhon involved a question of when in the course of an investigation the Board is
authorized to issue a subpoena, a question of timing that is not presented here. Id.¶13 Judge Taubman dissented, reiterating the views that he expressed in his
majority opinion in McLaughlin v. Colorado Medical Board, 2018 COA 41, 425 P.3d
1187, in which the division, in a divided, published opinion, invalidated a Board
subpoena in circumstances that parallel those presented here.
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¶14 Boland petitioned this court to review the division’s judgment, and we
granted the petition.
II. Analysis
¶15 In McLaughlin, we addressed the same issue as is presented in this case. For
the reasons that we articulated there, we conclude that because neither the
CDPHE’s adoption of the Referral Policy nor its referral of Boland to the Board
violated the OML or the APA, Boland’s contention that the subpoena to him was
void because the Policy and referral were void is based on a flawed premise and
is therefore unpersuasive. See McLaughlin, ¶¶ 24–25. Even if the adoption of the
Referral Policy and the referral itself violated the OML or the APA, however, we
still conclude that the Board’s subpoena to Boland had a lawfully authorized
purpose because it was issued pursuant to the Board’s statutory authority to
investigate allegations of unprofessional conduct and was properly tailored to that
purpose. See id. at ¶¶ 26–37.
III. Conclusion
¶16 For the foregoing reasons, we affirm the judgment of the division below.
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