HOUSE 3rd Reading Unamended February 8, 2011 HOUSE 2nd Reading Unamended February 7, 2011First Regular Session Sixty-eighth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 11-0383.01 Christy Chase HOUSE BILL 11-1128 HOUSE SPONSORSHIP Riesberg, SENATE SPONSORSHIP Williams S., House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the protection from discovery in a civil lawsuit against a state-regulated professional of documents resulting from a complaint about the professional that are held by the board that regulates the professional. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill protects from subpoena or discovery in a civil lawsuit against a state-regulated professional documents resulting from a complaint against the professional that are held by the director of the division of registrations, in the case of a complaint against an addiction counselor, or by the following regulatory boards: The state board of accountancy; The state board of pharmacy; The Colorado podiatry board; The state board of chiropractic examiners; The state board of dental examiners; The state board of nursing and the nurse aide advisory committee; The board of examiners of nursing home administrators; The state board of psychologist examiners; The state board of social work examiners; The state board of licensed professional counselor examiners; The state board of marriage and family therapist examiners; and The state grievance board. The protected documents include the complaint, response, investigation report, notes, and memoranda. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 12-2-126 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read: 12-2-126. Investigations, examinations, and cease-and-desist orders against unlawful act - protection of complaint documents. (1) (d) (I) Except as provided in subparagraph (II) of this paragraph (d), any documents that the board has in its possession resulting from a dismissed complaint concerning a certified public accountant are not subject to subpoena or discovery in any civil action against the certified public accountant who is the subject of the documents, and the documents are not open or available for public inspection. The documents protected by this subparagraph (I) include: (A) The complaint, response, investigation report, notes, and memoranda; and (B) Confidential books of account, financial records, advice, reports, or working papers provided by the client, certified public accountant, or certified public accounting firm. (II) The protections specified in subparagraph (I) of this paragraph (d) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a certified public accountant. The board may release a document described in subparagraph (I) of this paragraph (d) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 2. 12-22-113.5 (3), Colorado Revised Statutes, is amended to read: 12-22-113.5. Reporting - malpractice claims - protection of records. (3) (a) Information relating to each malpractice claim provided by insurance companies or self-insured pharmacists or pharmacies shall be are exempt from the provisions of any law requiring that the proceedings of the board be conducted publicly or that the minutes or records of the board be open to public inspection unless there is final disciplinary action taken. The board may use such the information in any formal hearing involving a licensee. (b) (I) Except as provided in subparagraph (II) of this paragraph (b), any documents that the board has in its possession resulting from a malpractice claim against a licensed pharmacist or registered pharmacy where no final disciplinary action was taken by the board, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed pharmacist or registered pharmacy that is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (b) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed pharmacist or registered pharmacy. The board may release a document described in subparagraph (I) of this paragraph (b) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 3. 12-32-108.3 (12), Colorado Revised Statutes, is amended to read: 12-32-108.3. Disciplinary action by board - protection of complaint documents. (12) (a) Investigations and examinations of the Colorado podiatry board conducted pursuant to the provisions of this section shall be are exempt from the provisions of 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 the provisions of this subsection (12) be open to public inspection. Any proceedings with regard to a licensee who is in violation of section 12-32-107 (3) (f) and who is participating in good faith in a rehabilitation program designed to alleviate the conditions specified in section 12-32-107 (3) (f) which has been approved by the board are also exempt from any such requirements of law. (b) (I) Except as provided in subparagraph (II) of this paragraph (b), any documents that the board has in its possession resulting from a complaint concerning a licensed podiatrist, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed podiatrist who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (b) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed podiatrist. The board may release a document described in subparagraph (I) of this paragraph (b) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 4. 12-33-119 (10), Colorado Revised Statutes, is amended to read: 12-33-119. Disciplinary proceedings - protection of complaint documents. (10) (a) Notwithstanding other laws to the contrary, investigations, examinations, meetings, and other proceedings of the board conducted pursuant to this section are not required to be conducted publicly, and minutes of the board need not be open to public inspection; except that final action of the board taken pursuant to this section shall be is open to the public. (b) (I) Except as provided in subparagraph (II) of this paragraph (b), any documents that the board has in its possession resulting from a complaint concerning a licensed chiropractor, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed chiropractor who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (b) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed chiropractor. The board may release a document described in subparagraph (I) of this paragraph (b) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 5. 12-35-129 (7) (e), Colorado Revised Statutes, is amended to read: 12-35-129. Causes for denial of issuance or renewal - suspension or revocation of licenses - other disciplinary action - unprofessional conduct defined - disciplinary panels - cease and desist - protection of complaint documents. (7) (e) (I) Investigations, examinations, hearings, meetings, or any other proceedings of the board conducted pursuant to this section shall be are exempt from the provisions of 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 are open to public inspection; except that the final action of the board taken pursuant to this section shall be is open to the public. (II) (A) Except as provided in sub-subparagraph (B) of this subparagraph (II), any documents that the board has in its possession resulting from a complaint concerning a licensed dentist or dental hygienist, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed dentist or dental hygienist who is the subject of the documents, and the documents are not open or available for public inspection. (B) The protections specified in sub-subparagraph (A) of this subparagraph (II) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed dentist or dental hygienist. The board may release a document described in sub-subparagraph (A) of this subparagraph (II) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 6. 12-38-116.5 (9), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read: 12-38-116.5. Disciplinary procedures of the board - inquiry and hearings panels - protection of complaint documents. (9) (c) (I) Except as provided in subparagraph (II) of this paragraph (c), any documents that the board has in its possession resulting from a complaint concerning a licensed nurse, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed nurse who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (c) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed nurse. The board may release a document described in subparagraph (I) of this paragraph (c) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 7. 12-38.1-114 (13), Colorado Revised Statutes, is amended to read: 12-38.1-114. Disciplinary proceedings - hearing officers - protection of complaint documents. (13) (a) Except when a decision to proceed with a disciplinary action has been agreed upon by a majority of the board or its designee and notice of formal complaint is drafted and served on the licensee by first-class mail, any investigations, examinations, hearings, meetings, or any other proceedings of the board related to discipline that are conducted pursuant to the provisions of this section shall be are exempt from the open records provisions of article 72 of title 24, C.R.S., requiring that the 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 the provisions of this section be open to public inspection. (b) (I) Except as provided in subparagraph (II) of this paragraph (b), any documents that the board has in its possession resulting from a dismissed complaint concerning a certified nurse aide, including but not limited to the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the certified nurse aide who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (b) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a certified nurse aide. The board may release a document described in subparagraph (I) of this paragraph (b) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 8. 12-39-114 (6), Colorado Revised Statutes, is amended to read: 12-39-114. Disciplinary proceedings - administrative law judge - judicial review - protection of complaint documents. (6) (a) (I) Subject to the limitations and requirements in subparagraphs (II) and (III) of this paragraph (a), complaints, investigations, hearings, meetings, or any other proceedings of the board conducted pursuant to the provisions of this article and relating to disciplinary proceedings shall be are exempt from the provision of 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 the provisions of this article be open to public inspection. except that this (II) The exemption shall apply applies only: (A) When the board, or an administrative law judge acting on behalf of the board, specifically determines that it is in the best interest of a complainant or other recipient of services to keep such the proceedings or documents relating thereto to the proceedings closed to the public; or (B) If the licensee is violating section 12-39-111 (1) (g), is participating in good faith in a program approved by the board or designed by the board to end any addiction or dependency specified in said section, and the licensee has not violated any provisions of the board order regarding participation in such a treatment program. (III) If the board determines that it is in the best interest of a complainant or other recipient of services to keep such the proceedings or related documents relating thereto closed to the public, then the final action of the board shall be open to the public without disclosing the name of the client or other recipient. (b) Final board actions and orders appropriate for judicial review may be judicially reviewed in the court of appeals in accordance with section 24-4-106 (11), C.R.S. (c) (I) Except as provided in subparagraph (II) of this paragraph (c), any documents that the board has in its possession resulting from a complaint concerning a licensed nursing home administrator that the board has determined to be closed pursuant to this subsection (6), including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensed nursing home administrator who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (c) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensed nursing home administrator. The board may release a document described in subparagraph (I) of this paragraph (c) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 9. 12-43-224 (4), Colorado Revised Statutes, is amended to read: 12-43-224. Disciplinary proceedings - judicial review - mental and physical examinations - multiple licenses - protection of complaint documents. (4) (a) Except when a decision to proceed with a disciplinary action has been agreed upon by a majority of the board that licenses, registers, or regulates such licensee, registrant, or unlicensed psychotherapist, and a notice of formal complaint is drafted and served on the licensee, registrant, or unlicensed psychotherapist by first-class mail or upon final agency action unless the complaint is dismissed as provided in paragraph (b) of this subsection (4), if a complaint is dismissed, records of investigations, examinations, hearings, meetings, or any and other proceedings of the board conducted pursuant to the provisions of this section shall be are exempt from the provisions of the open records law, article 72 of title 24, C.R.S. 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 the provisions of this section be open to public inspection. (b) The exemption from the open records law specified in paragraph (a) of this subsection (4) does not apply: (I) When a decision to proceed with a disciplinary action has been agreed upon by a majority of the applicable board and a notice of formal complaint is drafted and served on the licensee or registrant by first-class mail; or (II) Upon final agency action. (c) In any final agency action or the filing of a formal complaint, when the board, determines it is when it deems necessary, shall redact all names of clients or other recipients of services to protect such persons' confidentiality. (d) (I) Except as provided in subparagraph (II) of this paragraph (d), any documents that a board has in its possession resulting from a dismissed complaint concerning a licensee or registrant, including the complaint, response, investigation report, notes, and memoranda, are not subject to subpoena or discovery in any civil action against the licensee or registrant who is the subject of the documents, and the documents are not open or available for public inspection. (II) The protections specified in subparagraph (I) of this paragraph (d) do not apply to a search warrant or subpoena issued by an agency that enforces civil or criminal laws that is seeking access to or release of documents regarding a licensee or registrant. A board may release a document described in subparagraph (I) of this paragraph (d) in its discretion to any agency that enforces civil or criminal laws or state regulatory or licensing board in this or another state if the board determines that release of the document is necessary to carry out the board's legislative mandate. The board shall release the document in a manner that complies with all federal and Colorado laws regarding the provision of personal identifying information. SECTION 10. Act subject to petition - effective date - applicability. (1) This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote thereon by the governor. (2) The provisions of this act shall apply to documents relating to a complaint that are in the possession of a regulatory board or the director of the division of registrations before, on, or after the applicable effective date of this act.