Rule 280

3 CCR 713-18

RULES AND REGULATIONS REGARDING SUSPENSIONS

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,  12-36-104(1)(a), and 12-36-118,   C.R.S.

Purpose: The purpose of these rules and regulations is to provide a procedural safeguard for licensees whose licenses are suspended by the Board pursuant to sections 24-4-104(4),
24-60-3602(10), 12-36-118(5)(g)(IV), 12-36-118(8), or 12-36-118(9)(a), C.R.S.   These rules  are  not intended  to  apply  to the  case  of suspensions  pursuant  to Section  12-36-
118(5)(g)(III),  C.R.S.  The procedures set forth in this rule are in addition to those provided
by the Medical Practice  Act and the Administrative Procedure Act.

I.         SUSPENSIONS PURSUANT TO SECTION 24-4-104(4), C.R.S.

When an Inquiry Panel determines that the suspension of a license is appropriate pursuant to  section  24-4-104(4),  C.R.S.,  it  shall  offer  the  licensee  an  opportunity  to  appear before  the  Inquiry  Panel  to  offer  evidence  supporting  why  the  licensee  should  not  be suspended.  This  hearing  does  not  substitute  for  the  hearing  afforded  by  section  24-4-
104(4), C.R.S.,  but  is  in  addition  to  such  hearing.  The  Inquiry  Panel  shall  determine whether the opportunity  for a hearing may occur before the Inquiry Panel’s consideration of whether to suspend, or whether  the opportunity for hearing shall occur after the entry of an order suspending a license. The  determination of whether to offer a licensee notice of the right to a pre-suspension hearing or to offer a post-suspension hearing shall be in the sole discretion of the Inquiry Panel and shall  not be subject to review.

A.  Pre-Suspension Notice

In  the  event  that  the  Inquiry  Panel  believes  that  suspension  may  be  indicated,  the
Inquiry  Panel shall:

1.  Provide  notice  to  the  licensee  of  the  suspension.  Board  staff  shall  give notice  to  the  licensee  by  first  class  mail  and  shall  send  notice  to  the licensee’s  address of record pursuant to Board Rule 270;

2.   Issue  the  notice  within  72  hours  of  the  suspension,   excluding  interim weekends  and state holidays from the calculation; and,

3.  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; and,

f.  A statement that written material submitted by this deadline will be provided 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  at the  Inquiry  Panel Chair’s discretion.

B.  Suspension After Pre-Suspension Notice

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.  Board staff shall give notice to  the  licensee  by  first  class  mail  and  shall  send  notice  to  the  licensee’s address of record pursuant to Board Rule 270;

2.   Issue the notice within 72 hours of the suspension, excluding interim weekends and state holidays from the calculation; and,

3.  Include within the notice 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.

C.  Post-Suspension Notice

In the event that the Inquiry Panel determines that suspension without pre-suspension notice and hearing is warranted, the Inquiry Panel shall:

1.  Provide notice to the licensee of the suspension.  Board staff shall give notice to the licensee by first class mail and shall send notice to the licensee’s address of record pursuant to Board Rule 270;

2.  Issue the notice within 72 hours of the suspension, excluding interim weekends and state holidays from the calculation; and,

3.  Include the following information:

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;

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;

c.  A statement informing the licensee of the next regularly scheduled agenda deadline and the date and time of the next regularly scheduled meeting;

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

e.  A  statement  that  written  material  submitted  by  this  deadline  will  be provided to the Inquiry Panel members prior to the meeting; and,

f.   A statement  that written  material  not submitted  by the agenda  deadline may be presented during the hearing at the Inquiry Panel Chair’s discretion.

II.        SUSPENSIONS PURSUANT TO SECTION 12-36-118(5)(g)(IV), C.R.S.

In  the  event  that  the  board  determines  that  the  suspension  of  a  license  is  appropriate pursuant  to  section  12-36-118(5)(g)(IV),   C.R.S.,  the  Board  may  order  suspension  of  the licensee’s  license  until such time  as the licensee  complies  with all conditions  of the Final Agency Order.

In making the determination to suspend a license, the Board may take into consideration the licensee’s  prior  disciplinary  record.  If  the  Board  does  take  into  consideration  any  prior discipline of the licensee, its findings and recommendations shall so indicate.

In  the  event  that  the  Board  orders  suspension  of  a  license  pursuant  to  section  12-36-
118(5)(g)(IV), C.R.S., the Board shall:

1.  Provide notice to the licensee of the suspension.  Board staff shall give notice to the licensee by first class mail and shall send notice to the licensee’s address of record pursuant to Board Rule 270;

2.  Issue the notice within 72 hours of the suspension, excluding interim weekends and state holidays from the calculation; and

3.  Include the following information:

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;

b.  A statement instructing that the licensee may request a hearing before the Board for the limited purpose of showing that his or her failure to comply with  the Stipulation  and  Final  Agency  Order  was  due  to circumstances beyond his or her control, and that therefore his or her license should not be suspended. The licensee must make the request for hearing  prior to the Panel’s next agenda deadline;

c.  A statement informing the licensee of the next regularly scheduled agenda deadline and the date and time of the next regularly scheduled meeting;

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

e.  A  statement  that  written  material  submitted  by  this  deadline  will  be provided to the Board prior to the meeting; and,

f.   A statement  that written  material  not submitted  by the agenda  deadline may be presented during the hearing at the Inquiry Panel Chair’s discretion.

III.       SUSPENSIONS PURSUANT TO SECTION 12-36-118(8), C.R.S.

In the event that any licensee is determined to be mentally incompetent  or insane by a court of competent  jurisdiction  and a court  enters  an Order  making  findings  of such a degree   that   a   licensee   is   incapable   of   continuing   to   practice,   the   Board   shall automatically suspend the licensee’s license pursuant to section 12-36-118(8), C.R.S.

Any suspension shall continue until the licensee is found by such court to be competent to practice.

A.   When  the Board  orders  suspension  of a license  pursuant  to section  12-36-118(8), C.R.S., the Board shall:

1.  Provide notice to the licensee of the suspension.  Board staff shall give notice to the licensee by first class mail and shall send notice to the licensee’s address of record pursuant to Board Rule 270;

2.  Issue the notice within 72 hours of the suspension, excluding interim weekends and state holidays from the calculation; and,

3.  Include the following information:

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;

b.  A  statement  instructing  that  the  licensee  may  request  a post-suspension hearing before the Inquiry Panel at its next meeting for the limited purpose of providing evidence that the licensee either has not been determined  or is no longer  determined  to be incompetent  or insane  by a court  and  to request that the Suspension Order be set aside;

c.  A statement informing the licensee of the next regularly scheduled agenda deadline and the date and time of the next regularly scheduled meeting;

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

e.  A  statement  that  written  material  submitted  by  this  deadline  will  be provided to the Inquiry Panel members prior to the meeting;

f.   A statement  that written  material  not submitted  by the agenda  deadline may be presented during the hearing at the Inquiry Panel Chair’s discretion; and,

g.  A statement that the licensee may make a request for a hearing at any time after  the  court  makes  a  determination  that  the  licensee  is  no  longer determined  by the court to be incompetent  or insane.  Such request,  with any accompanying documents, shall be placed onto the agenda for the next regularly scheduled agenda deadline.

IV.       SUSPENSIONS PURSUANT TO SECTION 12-36-118(9)(a), C.R.S.

In the event that an Inquiry Panel issues an Order to a licensee for the reasons articulated in section 12-36-118(9)(a),  C.R.S., the licensee must submit to mental or physical examinations as determined by the Board.

When a licensee fails to comply with the Order for examination pursuant to section 12-36-
118(9)(a), C.R.S., the Inquiry Panel may suspend the licensee’s license until such time as the licensee complies with such conditions.

A.  When  the Inquiry  Panel  orders  suspension  of a license  pursuant  to section  12-36-
118(9)(a), C.R.S., the Inquiry Panel shall:

  1.  Provide  notice  to the licensee  of the suspension.  Board staff shall give notice to  the  licensee  by  first  class  mail  and  shall  send  notice  to  the  licensee’s address of record pursuant to Board Rule 270;
2.  Issue the notice within 72 hours of the suspension, excluding interim weekends and  state holidays from the calculation; and,

3.  Include the following information:

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;

b.  A   statement   instructing   that   the   licensee   may   request   a   post- suspension  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;

c.   A  statement  informing  the  licensee  of  the  next  regularly  scheduled agenda  deadline and the date and time of the next regularly scheduled meeting;

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

e.  A  statement  that  written  material  submitted  by  this  deadline  will  be provided to the Inquiry Panel members prior to the meeting; and,

f.   A  statement   that   written   material   not   submitted   by   the  agenda deadline   may  be  presented  during  the  hearing  at  the  Inquiry  Panel Chair’s discretion.

V. 	SUSPENSIONS PURSUANT TO SECTION 24-60-3602, C.R.S.

A.  Section  24-60-3601,  C.R.S.  et  seq.  applies  to  licensees  who  have  obtained 	
expedited  licensure through the Interstate Medical Licensure Compact.

B.   Where Colorado is the licensee’ s state of principal license, as that term is identified in   Section   24-60-3602,   C.R.S.,   any   suspension   proceeding   shall   follow   the procedures   identified  within  this  Rule  280  for the  statutory  basis  on  which  the suspension action  issued.

C.  In  the  event  that  another  state  is the  licensee’s  state  of principal  license,  and that  principal state suspends the license of a Colorado licensee, then the  licensee’  s Colorado   license  shall  be  automatically   placed   on  suspended   status,   without further action necessary by an Inquiry Panel, pursuant to Section 24-60-3602(10)(b), C.R.S.

1.In  the  event  that  the  state  of  principal  license  terminates  or  otherwise reinstates   the  license  issued  by  the  principal  state,  an  Inquiry  Panel  will review the matter  at its next regularly-scheduled panel meeting.

2.In  the  event  that  the  Inquiry  Panel  does  not  terminate  the  suspension  of the Colorado license following its review, the Inquiry Panel shall follow the procedures  identified  within  this  Rule  280 for the statutory  basis  on which the  ongoing suspension action is based.

D.  Where  another  member  state,  as  that  term  is identified  in  Section  24-60-3602, C.R.S.,   acts   to   suspend   its   license   of   a  licensee,   the   lice n se e’ s    Colorado license  shall   be   automatically   placed   on   suspended   status,   without   further action  necessary  by an Inquiry Panel, pursuant to Section 24-60-3602(10)(d), C.R.S.

1. The Inquiry Panel may maintain its suspension of the license e’ s Colorado license  for ninety (90) days in order to investigate the basis for the action.

2. The Inquiry Panel shall  follow  the procedures identified  within this  Rule 280 
for the statutory basis on which the suspension action issued.

3. The  Inquiry  Panel  may  terminate  the  suspension  of  the  licensee’ s  Colorado license prior to the conclusion of the ninety (90) day period.

VI. 		GENERAL RULES APPLICABLE TO ALL HEARINGS A.  Licensee’s Right To Hearing
Except as otherwise limited by Section V of this Rule, a licensee may request a hearing
after  any  Suspension  Order  enters.  The  licensee  shall  make  his  or  her  request  for  a hearing  in  conformance  with the scope and process described  within this rule, based on the statutory  basis for the suspension which has entered against the licensee.

B.  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 any Board meeting absent written notice to do so from Board staff.

C.  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  section   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. Both the licensee and counsel may present argument and may comment on the previously submitted  written material. The licensee may offer evidence through witnesses. Such testimony  may be written  or in  person (including  testimony by telephone) and  need not  be    sworn.    If  the  licensee  intends  to  present  testimony  by  telephone,  it  shall  be coordinated with Board  staff  prior  to  the  date  of  the  hearing.  Cross  examination  of the witnesses  by  the  Panel  members  or  counsel  for  the  Panel  may  be  permitted  in  the discretion  of the Inquiry Panel’s chair. No hearing shall exceed 30 minutes, unless, in the discretion of the Inquiry  Panel’s 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 section 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 section 24-  4-102(1), C.R.S.

Effective: 4/01/99; Revised: 9/30/00; Revised: 8/15/02; Effective: 10/30/02; Revised
8/19/10; Effective 10/15/10; Revised 11/19/2015, Effective 1/14/2016; Revised 5/18/17, Effective 7/15/2017