20CA0962 Bd of Nursing v Fresques 01-06-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA0962
Colorado State Board of Nursing No. NB 2019-0023
Colorado Board of Nursing,
Petitioner-Appellee,
v.
Donald J. Fresques, R.N., A.P.N.,
Respondent-Appellant.
ORDER REVERSED
Division VII
Opinion by JUDGE PAWAR
Navarro and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 6, 2022
Philip J. Weiser, Attorney General, Keenan E. Lorenz, Senior Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Spencer Fane LLP, Ellen Elizabeth Stewart, Troy R. Rackham, Denver,
Colorado, for Respondent-Appellant
1
¶ 1 Respondent, Donald. J. Fresques, appeals the ruling of the
Colorado Board of Nursing (Board) that his prescriptive license is
and always has been limited to pediatrics. We conclude that
Fresques did not receive adequate notice of the grounds on which
the Board limited his prescriptive license. We therefore conclude
that Fresques was deprived of procedural due process and reverse
the portion of the Board’s order limiting his prescriptive license.
The remaining portion of the Board’s order is not before us and is
therefore unaffected by this opinion.
I. Background
¶ 2 A nurse practitioner is one type of advanced practice nurse
(APN). § 12-255-111(2), C.R.S. 2021. A registered nurse can
become licensed as an APN if the nurse meets certain additional
training and experience requirements. Id. Once registered as an
APN, the nurse may then apply for a license to prescribe
medication. § 12-255-112(1), C.R.S. 2021. The requirements for
obtaining prescriptive authority are in addition to those required for
APN registration and are found in a separate statute. Id.
¶ 3 Fresques obtained his APN license in 1999 and his
prescriptive authority in 2000. Since then, the requirements for
2
obtaining those credentials have changed. Under the new
regulatory scheme, both the APN license statute and the
prescriptive authority statute contain exemption clauses that allow
nurses who obtained their credentials when Fresques did to retain
them without fully complying with the updated requirements. § 12-
38-111.5(4), C.R.S. 2018 (APN license exemption clause); § 12-38-
111.6(4.5)(c), C.R.S. 2018 (prescriptive authority exemption
clause).
1
At issue in this case is the scope of Fresques’ APN license
and prescriptive authority under those exemption clauses.
¶ 4 At the time Fresques obtained his APN license and prescriptive
authority, he was practicing in pediatrics. In the twenty years since
then, he has practiced in orthopedics, family medicine, and urgent
care. In 2010, he started his current job working at a private
multidisciplinary practice where he specializes in adult pain
management.
¶ 5 In 2019, an inquiry panel of the Board (the panel) decided that
Fresques was practicing outside the scope of his APN license. The
1
The “new regulatory scheme” refers to the 2018 statutes and
regulations applicable here. We recognize that the statutes and
regulations have been amended since then, but those amendments
are inapplicable to this case.
3
panel issued a cease and desist order stating that Fresques must
stop providing APN care to adults. The order alleged that under
section 12-38-111.5, C.R.S. 2018, the APN license statute in effect
at the time, Fresques’ APN license was limited to pediatrics and he
was therefore not allowed to provide APN care to non-pediatric
patients. The record contains no indication that Fresques has ever
provided substandard care — in fact, the record is replete with
evidence that Fresques has always practiced in exemplary fashion.
¶ 6 Later in 2019, the panel filed a notice of charges (effectively a
charging document) in the Office of Administrative Courts. The
notice contained a single count, which alleged that Fresques’ APN
license was limited to pediatrics and therefore did not authorize him
to treat adults. The panel brought the single count under section
12-38-111.5, C.R.S. 2018, the APN license statute, and did not
allege a violation of section 12-38-111.6, C.R.S. 2018, the
prescriptive authority statute.
¶ 7 Fresques answered the panel’s single count, and he and the
panel each filed motions for summary judgment. A hearing was
held shortly after the parties moved for summary judgment, but the
administrative law judge (ALJ) cut it short when it became clear
4
that the facts were undisputed and the only disagreement between
the parties was a pure question of law: was Fresques’ APN license
limited to pediatrics. Indeed, when it cut off the hearing, the ALJ
ordered the parties to submit written arguments “concerning the
legislative history of section 12-38-111.5,” the APN license statute.
At no point did the panel argue that even if Fresques’ APN license
was not limited to pediatrics under section 12-38-111.5, his
prescriptive authority was so limited under section 12-38-111.6.
And the ALJ did not request briefing on that question.
¶ 8 The ALJ decided the case on summary judgment. She ruled in
favor of Fresques on the single count alleged in the notice of
charges: Fresques’ APN license was not limited to pediatrics when
he obtained it in 1999 and the new APN license statute’s exemption
clause allowed him to retain that broad license and continue to
provide APN care to adults. However, the ALJ ruled against
Fresques on a count not specifically alleged in the notice of charges.
The ALJ held that Fresques’ prescriptive authority was limited to
pediatrics when he obtained it under section 12-38-111.6, C.R.S.
1999. According to the ALJ, although the new prescriptive
authority statute’s exemption clause allowed Fresques to retain his
5
prescriptive authority, that authority had only ever applied to
pediatrics and that limitation did not change. Based on this
analysis, the ALJ affirmed the panel’s cease and desist order with
the modification that it applied only to his prescriptive authority,
not his APN license. In effect, the ALJ affirmed a new cease and
desist order stating that Fresques can practice as an APN outside of
pediatrics but can prescribe only within pediatrics.
¶ 9 Fresques and the panel each filed exceptions to the ALJ’s
ruling. Fresques argued that (1) any challenge to his prescriptive
authority based on the prescriptive authority statute was not
properly raised and (2) the ALJ erred by holding that his
prescriptive authority was limited to pediatrics. The panel argued
that the ALJ erred by holding that Fresques was allowed to practice
as an APN outside of pediatrics. The Board adopted the ALJ’s
ruling as a final agency order without any modifications or
additional substantive explanation.
¶ 10 Only Fresques appeals. He urges us to reverse the Board’s
order for two reasons: (1) he did not receive notice of the added
count ultimately affirmed by the Board and was therefore deprived
of procedural due process; and (2) the Board incorrectly interpreted
6
the applicable law in limiting his prescriptive authority to
pediatrics. We agree with Fresques’ first argument and therefore
reverse without addressing the second.
II. Fresques was Deprived of Procedural Due Process
¶ 11 Fresques argues that he was deprived of procedural due
process because he was given notice only that the Board sought to
limit his APN license under section 12-38-111.5, C.R.S. 2018 — he
was not given notice that the Board also sought to limit his
prescriptive authority under section 12-38-111.6, C.R.S. 2018. We
review this argument de novo, see Klingsheim v. Cordell, 2016 CO
18, ¶ 14, and agree with Fresques.
A. Procedural Due Process and Notice
¶ 12 “The essence of procedural due process is fundamental
fairness,” a component of which is “advance notice and an
opportunity to be heard prior to state action resulting in deprivation
of a significant property interest.” Colo. State Bd. of Nursing v.
Lang, 842 P.2d 1383, 1386 (Colo. App. 1992).
¶ 13 The General Assembly has made clear exactly what kind of
advance notice is required in a proceeding like this one. Section
12-38-116.5(15)(a), C.R.S. 2018, requires that cease and desist
7
orders like the one here “set forth the statutes and rules alleged to
have been violated [and] the facts alleged to have constituted the
violation.” Additionally, any hearing held on allegations in a cease
and desist order must comport with sections 24-4-104 and -105,
C.R.S. 2021. And section 24-4-104(3)(a) provides that an agency
may not revoke, suspend, annul, limit, or modify a license “unless,
before institution of agency proceedings therefor, the agency has
given the licensee notice in writing of objective facts or conduct . . .
that may warrant such action and afforded the licensee opportunity
to submit written data, views, and arguments with respect to the
facts or conduct.”
B. No Notice at the Pleading Stage
¶ 14 The cease and desist order Fresques received from the panel
contained no mention of section 12-38-111.6 or prescriptive
authority. Instead, it focused exclusively on whether Fresques’ APN
license extended beyond pediatrics under section 12-38-111.5. And
it ordered him to stop “providing advanced practice care and
treatment to patients outside of the pediatric population focus . . .
until such time that Respondent is listed on the advanced practice
registry with a population focus that allows treatment of patients
8
outside of the pediatric population focus.” The order provided no
notice of the count the Board ultimately affirmed: that Fresques’
prescriptive practice was outside the scope of that authorized by
section 12-38-111.6. As to this count, the cease and desist order
clearly violated section 12-38-116.5(15)(a)’s notice requirements.
¶ 15 The panel’s notice of charges was similar. The single charge
was “Unauthorized Practice of Advanced Practice Nursing.” There
was no charge specific to Fresques’ prescriptive authority. The
notice of charges contained an entire section spanning six pages
reproducing all the “relevant provisions” of Colorado statute and
regulation in their entirety. Section 12-38-111.5 and numerous
other provisions relevant to obtaining an APN license were included.
Section 12-38-111.6 and its associated regulations were not. Nor
was any other provision related to the requirements for obtaining
prescriptive authority.
¶ 16 The only two references to prescriptive authority in the notice
of charges were in passing. First, the relevant provisions included
section 12-38-103(8.5)(b), C.R.S. 2018, which provided that
“‘[p]ractice of advanced practice nursing’ includes prescribing
9
medications as may be authorized pursuant to section 12-38-
111.6.”
¶ 17 Second, the factual allegations merely repeated this definition.
They went on to state that Fresques obtained his APN license in
1999 and recounted the nature of his practice since that time,
which included providing APN care to adults. Significantly, the
factual allegations did not mention when or if Fresques obtained
prescriptive authority, nor did they allege that Fresques had been
prescribing medication to any patients, pediatric or otherwise.
C. No Notice During Litigation Before the ALJ
¶ 18 When the parties filed their simultaneous motions for
summary judgment, Fresques made clear that, as he understood it,
his prescriptive authority was not being independently challenged.
In his motion for summary judgment, he wrote: “There is no claim
in this case that Respondent did not adhere to the requirements for
prescriptive authority under C.R.S. § 12-38-111.6.”
¶ 19 The first time section 12-38-111.6 and prescriptive authority
surfaced in any substantive manner was in the panel’s summary
judgment motion. But even then, the panel raised prescriptive
authority only to support its APN license argument. The panel’s
10
argument on summary judgment was that section 12-38-111.5 has
always limited the scope of an APN’s practice to the population they
served at the time they successfully applied for the license. The
panel supported this interpretation of the APN license statute by
arguing that the prescriptive authority statute contained a similar
and independent limitation. At no point in its summary judgment
filings did the panel argue that even if Fresques’ APN license
allowed him to care for adults, his prescriptive authority was
nevertheless limited to pediatrics.
¶ 20 At the hearing, the ALJ further indicated that the only relevant
issue was the scope of Fresques’ APN license, not the scope of his
prescriptive authority. As mentioned above, when she abandoned
the hearing, the ALJ ordered the parties to submit written briefs on
a single legal issue: the legislative history of section 12-38-111.5
and whether, based on that history, Fresques’ APN license was
limited to pediatrics.
¶ 21 After receiving the parties’ briefs and considering them with
the summary judgment filings, the ALJ ruled that Fresques’ APN
license was not limited to pediatrics under section 12-38-111.5.
But the ALJ did not stop there. Instead, she sua sponte conducted
11
a comprehensive analysis of section 12-38-111.6 to conclude that
even though Fresques’ APN license was not limited to pediatrics, his
prescriptive authority was.
¶ 22 In sum, before the ALJ issued her ruling, neither the panel nor
the ALJ indicated that Fresques’ prescriptive authority might be
limited under section 12-38-111.6, independent of any limitation to
his APN license under section 12-38-111.5.
2
The cease and desist
order and the notice of charges did not notify Fresques of this
possibility. Nor did any argument presented to the ALJ. This
violated section 12-38-116.5(15)(a), section 24-4-104(3)(a), and
Fresques’ right to procedural due process.
D. The Board’s Arguments to the Contrary are Unpersuasive
¶ 23 Initially, we recognize that had Fresques’ APN license been
limited to pediatrics, his prescriptive authority would have also
been limited to pediatrics. After all, prescriptive authority is a
component of practicing as an APN. But that would have limited
Fresques’ prescriptive authority based on the application of section
12-38-111.5 and the APN license rules. At no point prior to the
2
The Board conceded this point during oral arguments.
12
ALJ’s ruling was Fresques notified that his prescriptive authority
was being independently challenged under section 12-38-111.6.
And section 12-38-116.5(15)(a) explicitly requires that a respondent
receive notice of “the statutes and rules alleged to have been
violated.”
¶ 24 We are unpersuaded by the Board’s additional arguments that
any lack of notice does not require reversal. First, the Board argues
that whether Fresques’ prescriptive authority was limited by section
12-38-111.6 was tried by implied consent. The Board points to the
fact that Fresques failed to object to witness testimony and other
evidence related to prescriptive authority and section 12-38-111.6.
True, the summary judgment evidence included Fresques’
application for prescriptive authority and the letter granting him the
same. And the panel’s medical expert testified about the rules for
obtaining prescriptive authority. But the ALJ ultimately abandoned
the hearing because she determined that such evidence was
irrelevant to the sole and purely legal issue before her: was
Fresques’ APN license limited to pediatrics under section 12-38-
111.5. We therefore cannot say that Fresques impliedly consented
13
to litigating the scope of his prescriptive authority independently
from the scope of his APN license.
¶ 25 Second, the Board argues that any lack of notice was harmless
because it “did not diminish Mr. Fresques’ opportunity to challenge
the [panel’s cease and desist order].” The record belies this
argument. Fresques certainly had a fair opportunity to challenge
the original cease and desist order he received from the panel — the
order that focused exclusively on limiting his APN license under
section 12-38-111.5. But the cease and desist order as modified by
the ALJ was completely different. Rather than limiting his APN
license under section 12-38-111.5, it limited his prescriptive
authority under section 12-38-111.6. Before the ALJ, Fresques had
no opportunity to challenge the grounds of the order as modified by
the ALJ.
¶ 26 Third, the Board argues that procedural due process and
section 24-4-104(3)’s requirement of notice and process are
inapplicable here because neither the panel nor the Board ever
sought to revoke, suspend, annul, limit, or modify his prescriptive
authority. Instead, according to the Board, it only sought to stop
Fresques from exceeding the scope of his prescriptive authority,
14
which has always been limited to pediatrics. We disagree because
this characterization of the Board’s actions assumes that it and the
ALJ correctly interpreted section 12-38-111.6. And the notice
requirements applicable at the outset of a proceeding cannot hinge
on how a court ultimately resolves that proceeding.
¶ 27 To further explain: the exemption clause of section 12-38-
111.6 allowed Fresques to retain the prescriptive authority he
obtained in 1999 if he met certain requirements not at issue here.
§ 12-38-111.6(4.5)(c), C.R.S. 2018. But what was the scope of
Fresques’ 1999 prescriptive authority that he would be retaining?
The prescriptive authority statute in effect in 1999 limited
prescriptive authority to patients “appropriate” to an APN’s “scope
of practice.” § 12-38-111.6(8)(a), (c), C.R.S. 1999. The regulations
at the time limited prescriptive authority to patients “within” an
APN’s “area of practice.” Div. of Pros. & Occupations Ch. XV, Reg.
IV(A), 3 Code Colo. Regs. 716-1 (1999). Neither “scope of practice”
nor “area of practice” was defined in the statutes or regulations.
¶ 28 The ALJ and Board held that “scope of practice” and “area of
practice” referred to the patient population that the APN treated at
the time (for Fresques in 1999, pediatrics). Under this
15
interpretation, the modified cease and desist order could be seen as
merely forcing Fresques to practice within the confines of his
prescriptive license, which has never changed.
¶ 29 But what if a reviewing court disagrees with the ALJ and
Board’s interpretation? Suppose a reviewing court held that “scope
of practice” and “area of practice” for an APN referred not to the
patient population they care for, but rather the scope of duties of a
particular APN (i.e., the scope of duties of a Nurse Practitioner,
Certified Nurse Midwife, etc.). Or, alternatively, suppose a
reviewing court agreed that those terms referred to a particular
patient population, but that when an APN’s practice changes, like
Fresques’ did in compliance with his license, the contours of his
prescriptive authority automatically change with it. In either of
these circumstances, the panel’s cease and desist order as modified
by the ALJ would have sought to narrow or modify the scope of
Fresques’ prescriptive license, thus rendering section 24-4-104(3)
applicable. In short, we do not see how the applicability of certain
notice requirements at the initial stage of a proceeding can hinge on
16
the ultimate outcome at the end of the proceeding.
3
We therefore
reject the Board’s argument that section 24-4-104(3) does not
apply.
¶ 30 Finally, the Board argues that any defect in notice or
procedural due process was harmless because the facts are
undisputed and the substantive question before us is purely legal.
As the Board puts it, “[b]oth parties agree that Mr. Fresques was
prescribing medication to adults while working as an APN” and
therefore, even if Fresques had received proper notice, the result
before the ALJ and Board would have been the same. We are not so
sure.
¶ 31 As explained above, “scope of practice” and “area of practice”
are not defined in the regulatory scheme and, since the ALJ’s
ruling, it has become clear that the parties disagree about their
meaning. At oral argument, Fresques argued persuasively that had
3
To further illustrate this point, take the panel’s original cease and
desist order alleging that Fresques’ APN license was limited to
pediatrics. When it was issued, it seemed to merely force Fresques
to practice within the confines of his license, which confines had
never changed. But viewed in light of the ALJ and Board’s ultimate
conclusion that Fresques’ APN license was not limited to pediatrics,
the panel’s original cease and desist order most certainly sought to
limit or modify the license.
17
he known his prescriptive authority was being independently
challenged before the ALJ, he would have presented evidence that
his education and training in prescribing medications was not
solely limited to pediatrics. This evidence, according to Fresques,
would have supported his argument that in 1999, use of the terms
“scope of practice” and “area of practice” did not evince a legislative
intent to limit prescriptive authority to an APN’s population focus.
The lack of notice meant that Fresques had little incentive to
present this evidence or argument. Indeed, the ALJ granted
summary judgment based on her interpretation of section 12-38-
111.6 without any relevant argument or evidence. And the Board
simply adopted the ALJ’s ruling. The ALJ’s ruling may have been
different had she received arguments from both sides on this issue.
This possibility is why the principle of party presentation is central
to our entire justice system. See Greenlaw v. United States, 554
U.S. 237, 243-44 (2008); Galvan v. People, 2020 CO 82, ¶ 45.
¶ 32 We therefore conclude that Fresques’ right to procedural due
process was violated because he did not receive proper notice at any
time before the ALJ issued her ruling that the Board sought to limit
his prescriptive authority independently from any limit on his APN
18
license. Based on this conclusion, we reverse the portion of the
Board’s order providing that Fresques’ prescriptive authority is
limited to pediatrics.
III. Conclusion
¶ 33 The portion of the Board’s order limiting Fresques’ prescriptive
authority to pediatrics is reversed. This opinion does not prevent
the Board or panel from issuing a new cease and desist order
challenging Fresques’ prescriptive authority under section 12-38-
111.6.
JUDGE NAVARRO and JUDGE GROVE concur.