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Second Regular Session
Sixty-first General Assembly
LLS NO. 980821.01D JLB
HOUSE BILL 981383
STATE OF COLORADO
BY REPRESENTATIVE Romero
A BILL FOR AN ACT
CONCERNING PHYSICIAN DISCIPLINE UNDER THE "COLORADO
MEDICAL PRACTICE ACT".
(Note: This summary applies to this bill as introduced
and does not necessarily reflect any amendments that may be subsequently
Redefines "unprofessional conduct" to include a reasonable accommodation phrase in accordance with the federal "Americans with Disabilities Act" and defines "generally accepted standards of medical practice". Eliminates the requirement that the board of medical examiners consider whether the tests ordered and the treatment of the medical condition were appropriate.
Revises the procedures the board takes concerning disciplinary action. Authorizes the board to file a complaint, instead of conducting an investigation, upon being informed of certain facts. Directs the board to assign any complaint to an inquiry panel for an informal inquiry and investigation. Includes notice and other procedures for inquiry panels, the investigations conducted by such panels, and summary suspension hearings. Authorizes the board to impose a nondisciplinary rehabilitation order on a physician, based on such physician's intemperate use of drugs as a result of habituation or addiction caused by the medical care of another physician or such physician's selfreported intemperate use of drugs or alcohol over the preceding 5 years, an admission of such physician, or findings of impairment by a mental or physical examination. Includes other procedural safeguards. Requires that the charges set forth in a formal complaint be established by clear and convincing evidence.
Requires the board to submit a report to the general assembly every December 1 that includes data concerning such board's cases and the disposition of same.
Includes disciplinary guidelines describing aggravating
factors, mitigating factors, and mandatory minimum disciplinary
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. 1236117 (1) (o), (1) (p), and (1) (bb) (II), Colorado Revised Statutes, are amended to read:
1236117. Unprofessional conduct. (1) "Unprofessional conduct" as used in this article means:
ANY physical or mental disability as
to render THAT, DESPITE REASONABLE
ACCOMMODATION, RENDERS the licensee unable to perform medical
services with reasonable skill and with safety to the patient;
(p) Any act or omission
THAT fails to meet generally accepted standards of medical practice
AS DEFINED IN SUBPARAGRAPH (II) OF PARAGRAPH (bb) OF THIS SUBSECTION
(bb) (II) "GENERALLY ACCEPTED
STANDARDS OF MEDICAL PRACTICE" MEANS THE SAME DEGREE
OF KNOWLEDGE, SKILL, AND CARE AS IS EXERCISED BY OTHER PHYSICIANS
IN THE SAME FIELD OF MEDICINE, IN THE SAME COMMUNITY, AND DURING
THE SAME PERIOD OF TIME. In determining which activities and practices
are not consistent with
of care or are contrary to recognized standards of the practice
of medicine GENERALLY ACCEPTED STANDARDS
OF MEDICAL PRACTICE, the board of medical examiners shall
utilize MAY CONSIDER, in addition
to its own expertise, the
APPLICABLE standards developed by recognized and established accreditation
or review organizations which organizations
THAT meet requirements established by the board by rule and regulation.
Such determinations shall include
but not be limited to appropriate ordering of laboratory tests
and studies, appropriate ordering of diagnostic tests and studies,
appropriate treatment of the medical condition under review, appropriate
use of consultations or referrals in patient care, and appropriate
creation and maintenance of patient records.
SECTION 2. 1236118 (1), (4), (5) (e), (5) (f), (5) (g), and (5) (h), Colorado Revised Statutes, are amended, and the said 1236118 (5) is further amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS, to read:
1236118. Disciplinary action by board immunity. (1) (a) The president of the board shall divide those members of the board other than the president into two INQUIRY panels of five members each, four of whom shall be physician members.
(b) Each INQUIRY panel shall act as both
an inquiry and a hearings panel. Members of the board may 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. (c)
matters referred to one panel for investigation shall be heard,
if referred for formal hearing, by the other panel or a committee
of such 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 244105, C.R.S.
decision of an administrative law judge may be reviewed pursuant
to section 244105 (14) and (15), C.R.S., by the filing
of exceptions to the initial decision with the hearings panel
which would have heard the case if it had not been referred to
an administrative law judge or by review upon the motion of such
hearings panel. The respondent or the board's counsel shall file
complaints relating to the conduct of a physician 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 physician complained of shall be given notice
by certified 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 physician's answer
or at the conclusion of thirty days, whichever occurs first, the
inquiry panel may take further action as set forth in subparagraph
(II) of this paragraph (a).
(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 physicians 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. Any such investigation shall be entirely informal.
shall cause an investigation to be made when the board is informed
of: ANY PERSON OR ENTITY MAY FILE
A WRITTEN COMPLAINT WITH THE BOARD OR THE BOARD MAY FILE A COMPLAINT
ON ITS OWN MOTION WHEN SUCH BOARD IS INFORMED OF:
(I) Disciplinary actions taken by hospitals to suspend or revoke the privileges of a physician and reported to the board pursuant to section 253107, C.R.S.;
(II) Disciplinary actions taken as a result of a professional review proceeding pursuant to part 1 of article 36.5 of this title against a physician. Such disciplinary actions shall be promptly reported to the board.
(III) An instance of a medical malpractice settlement or judgment against a physician reported to the board pursuant to section 101124, C.R.S.; or
(IV) Physicians who have been allowed to resign from hospitals for medical misconduct. Such hospitals shall report the same.
of an investigation the inquiry panel shall make a finding that:
(I) The complaint is without merit
and no further action need be taken with reference thereto;
(II) There is no reasonable cause
to warrant further action with reference thereto;
(II.5) The investigation discloses
an instance of conduct which does not warrant formal action by
the board and should be dismissed but in which the inquiry panel
has noticed indications of possible errant conduct by the licensee
that could lead to serious consequences if not corrected. In such
a case, a confidential letter of concern shall be sent to the
physician against whom the complaint was made.
(III) The investigation discloses
an instance of unprofessional conduct which, in the opinion of
the inquiry panel, does not warrant formal action by the board
but which should not be dismissed as being without merit; in such
case, a certified letter, return receipt requested, of admonition
shall be sent to the physician against whom a complaint was made
and a copy thereof to the person making the complaint, but, when
a letter of admonition is sent by the inquiry panel to a physician
complained against, such physician shall be advised that he has
the right to request in writing, within twenty days after receipt
of the letter, that formal disciplinary proceedings be initiated
against him to adjudicate the propriety of the conduct upon which
the letter of admonition is based. If such request is timely made,
the letter of admonition shall be deemed vacated, and the matter
shall be processed by means of formal disciplinary proceedings;
(IV) The investigation discloses
facts which warrant further proceedings by formal complaint, as
provided in subsection (5) of this section, in which event the
complaint shall be referred to the attorney general for preparation
and filing of a formal complaint.
pursuant to this subsection (4) shall be expeditiously and informally
conducted so that no physician is subjected to unfair and unjust
charges and that no complainant is deprived of his right to a
timely, fair, and proper investigation of his complaint.
(f) UPON RECEIPT OF A WRITTEN COMPLAINT, THE BOARD SHALL ASSIGN SUCH COMPLAINT TO AN INQUIRY PANEL THAT MAY INITIATE AN INFORMAL INQUIRY AND INVESTIGATION. ANY SUCH INQUIRY SHALL BE CONDUCTED IN ACCORDANCE WITH THE FOLLOWING:
(I) THE COMPLAINANT SHALL HAVE AN OPPORTUNITY TO EXPLAIN THE ALLEGATIONS MADE IN THE COMPLAINT.
(II) THE INQUIRY PANEL SHALL NOTIFY THE PHYSICIAN WHO IS THE SUBJECT OF THE COMPLAINT, IN WRITING BY CERTIFIED MAIL, THAT AN INFORMAL COMPLAINT HAS BEEN FILED AGAINST HIM OR HER. SUCH WRITTEN NOTIFICATION SHALL INCLUDE THE FOLLOWING INFORMATION:
(A) A COPY OF THE WRITTEN COMPLAINT AND ALL DOCUMENTS AND INFORMATION FORMING THE BASIS OF SUCH COMPLAINT, INCLUDING THE IDENTITY OF THE COMPLAINANT; AND
(B) IF THE COMPLAINT WAS GENERATED BY THE BOARD ON ITS OWN MOTION, A DESCRIPTION OF THE ALLEGATIONS WRITTEN IN SIMPLE AND EASYTOUNDERSTAND LANGUAGE, A NOTICE OF THE PARTICULAR ACT ALLEGED TO BE UNPROFESSIONAL CONDUCT, AND THE SPECIFIC PROVISIONS OF THIS ARTICLE ALLEGED TO HAVE BEEN VIOLATED BY SUCH ACT.
(III) THE PHYSICIAN SHALL HAVE THIRTY DAYS TO PROVIDE A WRITTEN RESPONSE TO THE COMPLAINT.
(IV) UPON RECEIPT OF THE PHYSICIAN'S RESPONSE OR AT THE CONCLUSION OF THIRTY DAYS, IF THE PHYSICIAN HAS FAILED OR REFUSED TO RESPOND, THE INQUIRY PANEL MAY INITIATE AN INVESTIGATION THAT MAY BE MADE BY ONE OR MORE MEMBERS OF SUCH INQUIRY PANEL, ONE OR MORE PHYSICIANS WHO ARE NOT MEMBERS OF THE BOARD, A STAFF MEMBER OF THE BOARD, A PROFESSIONAL INVESTIGATOR, OR ANOTHER PERSON OR ORGANIZATION SELECTED BY THE BOARD.
(V) THE INQUIRY PANEL SHALL KEEP AN INFORMATION FILE ABOUT EACH INVESTIGATION AND EACH FILE SHALL BE AVAILABLE FOR REVIEW BY THE COMPLAINANT AND THE PHYSICIAN WHO IS THE SUBJECT OF THE COMPLAINT. SUCH INFORMATION FILES SHALL BE KEPT CURRENT AND SHALL CONTAIN:
(A) THE NAMES AND ADDRESSES OF PERSONS CONTACTED AS POTENTIAL WITNESSES;
(B) A SUMMARY OF FINDINGS AT THE END OF EACH STEP IN THE COMPLAINT PROCESS;
(C) AN EXPLANATION OF THE LEGAL OR FACTUAL BASIS FOR THE COMPLAINT; AND
(D) ANY OTHER RELEVANT INFORMATION.
(VI) ANY INVESTIGATION CONDUCTED PURSUANT TO THIS PARAGRAPH (f) SHALL BE FAIR TO THE PHYSICIAN AND THE COMPLAINANT AND SHALL INCLUDE A REVIEW OF INCULPATORY AND EXCULPATORY EVIDENCE.
(g) IF, AFTER COMPLETING THE INVESTIGATION CONDUCTED PURSUANT TO PARAGRAPH (f) OF THIS SUBSECTION (4), THE INQUIRY PANEL DETERMINES THAT THE ALLEGATIONS DO NOT CONSTITUTE UNPROFESSIONAL CONDUCT, SUCH INQUIRY PANEL SHALL DISMISS SUCH COMPLAINT, AND THE COMPLAINANT AND THE PHYSICIAN SHALL BE NOTIFIED OF THE LEGAL OR FACTUAL BASIS FOR ANY SUCH DISMISSAL. IF THE INQUIRY PANEL DETERMINES THAT THE ALLEGATIONS DO CONSTITUTE UNPROFESSIONAL CONDUCT, THE PHYSICIAN AND COMPLAINANT SHALL BE GIVEN AN OPPORTUNITY FOR AN INFORMAL MEETING WITH THE INQUIRY PANEL, WHERE THE PHYSICIAN MAY BE REPRESENTED BY COUNSEL. AT SUCH INFORMAL MEETING, THE PHYSICIAN SHALL HAVE AN OPPORTUNITY TO BE HEARD AND THE INQUIRY PANEL SHALL PRESENT THE FACTS IT REASONABLY BELIEVES IT CAN PROVE BY COMPETENT EVIDENCE OR QUALIFIED WITNESSES AT A HEARING. THE PHYSICIAN MAY REPLY TO THE INQUIRY PANEL'S PRESENTATION AND MAY PRESENT FACTS THAT SUCH PHYSICIAN REASONABLY BELIEVES HE OR SHE CAN PROVE BY COMPETENT EVIDENCE OR QUALIFIED WITNESSES AT A HEARING.
(h) (I) IF THE INQUIRY PANEL, AFTER COMPLETING AN INFORMAL MEETING PURSUANT TO PARAGRAPH (g) OF THIS SUBSECTION (4) AND CONSIDERING THE DISCIPLINARY GUIDELINES IN SUBSECTION (14) OF THIS SECTION, FINDS THAT THE INFORMATION DOES NOT WARRANT PROBATION OR A SUSPENSION OR REVOCATION OF LICENSE, IT MAY TAKE ANY OF THE FOLLOWING ACTIONS:
(A) DISMISS THE COMPLAINT IF IN THE OPINION OF THE PANEL THE INFORMATION CANNOT BE PROVEN OR DOES NOT CONSTITUTE UNPROFESSIONAL CONDUCT;
(B) ISSUE A LETTER OF CONFIDENTIAL CONCERN. THE ISSUANCE OF SUCH A LETTER SHALL NOT BE A DISCIPLINARY ACTION OF THE BOARD OR A MATTER OF PUBLIC RECORD.
(C) ENTER INTO A REHABILITATION ORDER PURSUANT TO SUBSECTION (16) OF THIS SECTION. SUCH AN ORDER SHALL NOT BE A DISCIPLINARY ACTION OF THE BOARD OR A MATTER OF PUBLIC RECORD.
(D) WITH THE PHYSICIAN'S CONSENT, ENTER INTO AN AGREEMENT TO RESTRICT OR LIMIT SUCH PHYSICIAN'S PRACTICE OR MEDICAL ACTIVITIES IN ORDER TO REHABILITATE THE PHYSICIAN, PROTECT THE PUBLIC, AND ENSURE THE PHYSICIAN'S ABILITY TO SAFELY ENGAGE IN THE PRACTICE OF MEDICINE. SUCH AN AGREEMENT SHALL BE A DISCIPLINARY ACTION OF THE BOARD AND A MATTER OF PUBLIC RECORD.
(E) ISSUE A LETTER OF ADMONITION. THE ISSUANCE OF SUCH A LETTER SHALL BE A DISCIPLINARY ACTION OF THE BOARD AND A MATTER OF PUBLIC RECORD. A PHYSICIAN SHALL HAVE TWENTY DAYS AFTER RECEIPT OF A LETTER OF ADMONITION TO REQUEST IN WRITING THAT FORMAL DISCIPLINARY PROCEEDINGS BE INITIATED TO ADJUDICATE THE PROPRIETY OF THE CONDUCT UPON WHICH SUCH LETTER OF ADMONITION IS BASED. IF SUCH REQUEST IS TIMELY MADE, THE LETTER OF ADMONITION SHALL BE VACATED AND FORMAL DISCIPLINARY PROCEEDINGS SHALL BE INITIATED.
(II) IF THE INQUIRY PANEL, AFTER COMPLETING AN INFORMAL MEETING PURSUANT TO PARAGRAPH (g) OF THIS SUBSECTION (4), FINDS THAT THE INFORMATION DISCLOSED IN THE INFORMAL INQUIRY, INVESTIGATION, AND INFORMAL MEETING WARRANT PROBATION, SUSPENSION, OR REVOCATION, IT SHALL INITIATE FORMAL DISCIPLINARY PROCEEDINGS CONCERNING THE PHYSICIAN'S CONDUCT. IF THE INVESTIGATION DISCLOSES FACTS THAT WARRANT FURTHER PROCEEDINGS BY FORMAL COMPLAINT, AS PROVIDED IN SUBSECTION (5) OF THIS SECTION, THE MATTER SHALL BE REFERRED TO THE ATTORNEY GENERAL FOR PREPARATION AND FILING OF A FORMAL COMPLAINT.
(i) THE COMPLAINANT SHALL BE NOTIFIED OF ANY RECOMMENDATIONS AND ACTION TAKEN BY THE BOARD.
(j) ALL PROCEEDINGS CONDUCTED PURSUANT TO THIS SUBSECTION (4) SHALL BE HELD IN AN EXPEDITIOUS, IMPARTIAL, AND INFORMAL MANNER SO THAT NO PHYSICIAN IS SUBJECTED TO UNFAIR AND UNJUST CHARGES AND NO COMPLAINANT IS DEPRIVED OF A TIMELY, FAIR, AND PROPER INVESTIGATION OF HIS OR HER COMPLAINT.
(k) ON OR BEFORE DECEMBER 1, 1998, AND ON OR BEFORE EACH DECEMBER 1 THEREAFTER, THE BOARD SHALL SUBMIT A REPORT TO THE GENERAL ASSEMBLY DESCRIBING THE ACTIVITIES OF THE BOARD FOR THE PREVIOUS FISCAL YEAR. SUCH REPORT SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, THE FOLLOWING:
(I) THE NUMBER OF ACTIVE CASES THE BOARD HAD AS OF THE BEGINNING OF THE FISCAL YEAR;
(II) THE NUMBER OF COMPLAINTS FILED PURSUANT TO PARAGRAPH (b) OF THIS SUBSECTION (4) DURING THE PREVIOUS FISCAL YEAR;
(III) THE STATUS OF AND ACTIONS TAKEN ON COMPLAINTS FILED DURING THE YEAR;
(IV) AN ANALYSIS OF ALL CASES THAT WERE ACTIVE DURING THE YEAR AND NOT RESOLVED WITHIN NINETY DAYS AFTER FILING. SUCH ANALYSIS SHALL INCLUDE THE NATURE OF THE COMPLAINT; THE REASON FOR THE DELAY PAST NINETY DAYS; THE PERIOD OF TIME REQUIRED FOR INITIAL INQUIRY, INVESTIGATION, AND A DECISION WHETHER TO REFER THE MATTER TO THE ATTORNEY GENERAL; AND THE PERIOD OF TIME REQUIRED FOR THE HEARING AND DECISION REGARDING DISCIPLINARY ACTION.
(V) ANY OTHER COMMENTS BY THE BOARD THAT IT DEEMS TO BE RELEVANT.
(5) (e) All formal complaints shall
be heard and determined in accordance with
(f) of this subsection (5) and section 244105, C.R.S.
Except as provided in subsection (1) of this section, all formal
hearings shall be conducted by the hearings panel. The physician
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
SECTION 244105, C.R.S., EXCEPT AS EXPRESSLY PROVIDED
IN PARAGRAPHS (k) AND (m) OF THIS SUBSECTION (5). AN ADMINISTRATIVE
LAW JUDGE SHALL PRESIDE OVER ALL SUCH HEARINGS.
as provided in subsection (1) of this section, an administrative
law judge shall preside at the hearing, and he shall advise the
hearings panel on all such legal matters in connection with the
hearing as the panel may request. He shall provide such advice
or assistance as the hearings panel may request in connection
with its preparations of its findings and recommendations or conclusions
to be made. Such AN administrative
law judge shall have the authority to administer oaths and affirmations,
sign and issue subpoenas, and perform such other duties as the
hearings panel may authorize him
SUCH JUDGE to perform. Such administrative law judge shall have
the qualifications provided in section 24301003 (2),
C.R.S., with five years' experience as a licensed attorney.
warrant a finding of unprofessional conduct, the charges shall
be established as specified in section 244105 (7),
C.R.S. Except as provided in subsection (1) of this section, the
hearings panel shall make a report of its findings and conclusions
which, when approved and signed by a majority of those members
of the hearings panel who have conducted the hearing pursuant
to paragraphs (e) and (f) of this subsection (5), shall be and
become the action of the board.
(II) If it is found that the charges
are unproven, the hearings panel, or an administrative law judge
sitting in lieu of the hearings panel pursuant to subsection (1)
of this section, shall enter an order dismissing the complaint.
(III) If the hearings panel finds
the charges proven and orders that discipline be imposed, it shall
also determine the extent of such discipline, which shall be in
the form of a letter of admonition, suspension for a definite
or indefinite period, or revocation of license to practice. 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 such 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 physician be granted probation and allowed to continue
to practice during the period of such probation. The hearings
panel may also include in any disciplinary order which allows
the physician to continue to practice such conditions as the panel
may deem appropriate to assure that the physician is physically,
mentally, morally, and otherwise qualified to practice medicine
in accordance with generally accepted professional standards of
practice, including any or all of the following:
(A) Submission by the respondent
to such examinations as the hearings panel may order to determine
his physical or mental condition or his professional qualifications;
(B) The taking by him of such
therapy or courses of training or education as may be needed to
correct deficiencies found either in the hearing or by such examinations;
(C) The review or supervision
of his practice as may be necessary to determine the quality of
his practice and to correct deficiencies therein; and
(D) The imposition of restrictions
upon the nature of his practice to assure that he does not practice
beyond the limits of his capabilities.
(IV) Upon the failure of the physician
to comply with any conditions imposed by the hearings panel pursuant
to subparagraph (III) of this paragraph (g), unless due to conditions
beyond the physician's control, the hearings panel may order suspension
of the physician's license to practice in this state until such
time as the physician complies with such conditions.
(V) In making any of the orders
provided in subparagraphs (III) and (IV) of this paragraph (g),
the hearings panel may take into consideration the physician's
prior disciplinary record. If the hearings panel does take into
consideration any prior discipline of the physician, its findings
and recommendations shall so indicate.
(VI) In all cases of revocation,
suspension, or probation, the board shall enter in its records
the facts of such revocation, suspension, or probation and of
any subsequent action of the board with respect thereto.
(VII) to (IX) (Deleted by amendment,
L. 79, p. 516, 14, effective July 1, 1979.)
general shall prosecute those charges which have been referred
to him by the inquiry panel pursuant to subparagraph (IV) of paragraph
(c) of subsection (4) of this section. The board may direct the
attorney general to perfect an appeal.
(i) ANY INQUIRY PANEL OF THE BOARD SHALL BEAR THE BURDEN OF PROVING THE CHARGES OF THE FORMAL COMPLAINT BY CLEAR AND CONVINCING EVIDENCE.
(j) A PHYSICIAN HAS THE RIGHT TO ATTEND ANY FORMAL HEARING COMMENCED PURSUANT TO THIS SUBSECTION (5) IN PERSON AND TO BE REPRESENTED BY COUNSEL. SUCH PHYSICIAN MAY PRESENT HIS OR HER CASE AND CONDUCT SUCH CROSSEXAMINATION AS MAY BE REQUIRED FOR A FULL AND TRUE DISCLOSURE OF THE FACTS.
(k) IF THE CHARGES SET FORTH IN ANY FORMAL COMPLAINT ARE NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE, THE ADMINISTRATIVE LAW JUDGE SHALL ENTER AN ORDER DISMISSING THE COMPLAINT OR THE CHARGES THAT WERE NOT PROVEN. IF THE CHARGES ARE PROVEN BY CLEAR AND CONVINCING EVIDENCE, THE ADMINISTRATIVE LAW JUDGE SHALL ORDER THAT DISCIPLINE BE IMPOSED AND SHALL DETERMINE THE EXTENT OF SUCH DISCIPLINE, TAKING INTO CONSIDERATION THE DISCIPLINARY GUIDELINES SET FORTH IN SUBSECTION (14) OF THIS SECTION.
(l) AT ANY FORMAL HEARING HELD PURSUANT TO THIS SUBSECTION (5), WITNESSES SHALL BE SWORN IN AND A COMPLETE RECORD SHALL BE MADE OF ALL PROCEEDINGS AND TESTIMONY.
(m) THE DECISION OF THE ADMINISTRATIVE LAW JUDGE SHALL CONSTITUTE THE FINAL ACTION OF THE BOARD, SUBJECT TO APPEAL PURSUANT TO SECTION 1236119.
(n) THE ATTORNEY GENERAL SHALL PROSECUTE ANY CHARGES REFERRED BY THE INQUIRY PANEL PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (h) OF SUBSECTION (4) OF THIS SECTION. THE BOARD MAY DIRECT THE ATTORNEY GENERAL TO PERFECT AN APPEAL.
SECTION 3. 1236118, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read:
1236118. Disciplinary action by board immunity. (14) Disciplinary guidelines. (a) Legislative declaration. THIS SUBSECTION (14) IS ENACTED TO:
(I) PROVIDE GUIDANCE AND A FRAMEWORK FOR THE BOARD AND ADMINISTRATIVE LAW JUDGES IN THE IMPOSITION OF DISCIPLINARY SANCTIONS ON PHYSICIANS; AND
(II) PROMOTE CONSISTENCY IN THE EXERCISE OF SOUND DISCRETION BY BOARD MEMBERS AND ADMINISTRATIVE LAW JUDGES IN THE IMPOSITION OF SANCTIONS IN SUCH DISCIPLINARY MATTERS.
(b) IT SHALL BE THE POLICY OF THE BOARD TO IMPOSE DISCIPLINE IN A PROGRESSIVE MANNER WHENEVER POSSIBLE. A PHYSICIAN SUBJECT TO DISCIPLINARY ACTION FOR THE FIRST TIME SHALL BE GIVEN AN OPPORTUNITY TO CORRECT HIS OR HER PATTERNS OF PRACTICE IN THE BOARD'S DISCRETION. WITH RESPECT TO ACTS OF UNPROFESSIONAL CONDUCT THAT WERE NOT WILLFUL AND DID NOT RESULT IN PATIENT INJURY, THE PREFERRED METHOD OF DISCIPLINE SHALL BE THE ISSUANCE OF A LETTER OF CONCERN OR LETTER OF ADMONITION. MORE SEVERE SANCTIONS SHALL BE RESERVED FOR CASES WHERE THERE IS REPEATED UNPROFESSIONAL CONDUCT, A WILLFUL VIOLATION, OR UNPROFESSIONAL CONDUCT CAUSING THE DEATH OR SERIOUS INJURY OF A PATIENT.
(c) THE FOLLOWING ARE AGGRAVATING FACTORS THAT MAY BE CONSIDERED IN DETERMINING PHYSICIAN DISCIPLINE:
(I) PATIENT HARM AND THE SEVERITY OF SUCH HARM;
(II) GROSSLY SUBSTANDARD MEDICAL CARE;
(III) REPEATED ACTS OF SUBSTANDARD MEDICAL CARE;
(IV) ECONOMIC HARM TO ANY INDIVIDUAL OR ENTITY AND THE SEVERITY OF SUCH HARM;
(V) INCREASED POTENTIAL HARM TO THE PUBLIC;
(VI) ATTEMPTED CONCEALMENT OF MISCONDUCT;
(VII) PREMEDITATED MISCONDUCT;
(VIII) INTENTIONAL MISCONDUCT;
(X) PRIOR MISCONDUCT OF A SIMILAR OR RELATED NATURE;
(XI) PRIOR DISCIPLINARY HISTORY;
(XII) PRIOR WARNINGS OR WRITTEN ADMONITIONS FROM ANY GOVERNMENTAL AGENCY OR OFFICIAL CONCERNING THE LAWS PERTAINING TO MISCONDUCT;
(XIII) VIOLATION OF A BOARD ORDER;
(XIV) FAILURE TO IMPLEMENT REMEDIAL MEASURES TO CORRECT OR MITIGATE HARM RESULTING FROM THE MISCONDUCT;
(XV) LACK OF REHABILITATIVE POTENTIAL OR LIKELIHOOD OF FUTURE SIMILAR MISCONDUCT; AND
(XVI) CIRCUMSTANCES THAT INCREASE THE SERIOUSNESS OF THE MISCONDUCT.
(d) THE FOLLOWING ARE EXTENUATING AND MITIGATING FACTORS THAT MAY BE CONSIDERED IN IMPOSING PHYSICIAN DISCIPLINE:
(I) ABSENCE OF PATIENT HARM;
(II) ABSENCE OF ECONOMIC HARM TO ANY INDIVIDUAL OR ENTITY;
(III) ABSENCE OF POTENTIAL HARM TO THE PUBLIC;
(IV) SELFREPORTED AND VOLUNTARY ADMISSIONS OF MISCONDUCT;
(V) ABSENCE OF PREMEDITATION TO COMMIT MISCONDUCT;
(VI) LACK OF MOTIVE;
(VII) ABSENCE OF PRIOR MISCONDUCT OF A SIMILAR OR RELATED NATURE;
(VIII) ABSENCE OF DISCIPLINARY HISTORY;
(IX) IMPLEMENTATION OF REMEDIAL MEASURES TO CORRECT OR MITIGATE HARM FROM THE MISCONDUCT;
(X) REHABILITATIVE POTENTIAL;
(XI) PRIOR COMMUNITY SERVICE AND PRESENT VALUE TO THE COMMUNITY;
(XII) RELEVANT CIRCUMSTANCES REDUCING THE SERIOUSNESS OF THE MISCONDUCT; AND
(XIII) RELEVANT CIRCUMSTANCES LESSENING THE RESPONSIBILITY FOR THE MISCONDUCT.
(e) THE FOLLOWING ARE MANDATORY MINIMUM DISCIPLINARY MEASURES:
(I) A PERIOD OF SUSPENSION OF NOT LESS THAN ONE YEAR SHALL BE IMPOSED FOR GROSSLY SUBSTANDARD CARE THAT, HAD SUCH GROSSLY SUBSTANDARD CARE NOT BEEN PROVIDED, THE PATIENT WOULD NOT HAVE SUFFERED DEATH OR SERIOUS INJURY.
(II) A PERIOD OF PROBATION OR SUSPENSION OF NOT LESS THAN SIX MONTHS SHALL BE IMPOSED FOR SUBSTANDARD CARE THAT, HAD SUCH SUBSTANDARD CARE NOT BEEN PROVIDED THE PATIENT WOULD NOT HAVE SUFFERED DEATH OR SERIOUS INJURY.
(III) A PERIOD OF SUSPENSION OF NOT LESS THAN THREE MONTHS SHALL BE IMPOSED FOR FRAUD, WILLFUL MISREPRESENTATION IN AN INITIAL OR RENEWAL LICENSE APPLICATION, WILLFUL VIOLATION OF A PRIOR BOARD ORDER, OR WILLFUL FAILURE TO REPORT A MALPRACTICE SETTLEMENT OR ADVERSE ACTION BY A MALPRACTICE SETTLEMENT, PROFESSIONAL REVIEW COMMITTEE, OR STATE BOARD.
(15) (a) IF THE BOARD DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT THE PHYSICIAN IS GUILTY OF A DELIBERATE AND WILLFUL VIOLATION OR THAT THE PUBLIC HEALTH, SAFETY, OR WELFARE REQUIRES EMERGENCY ACTION, THE BOARD SHALL SET THE DATE FOR A SUMMARY SUSPENSION HEARING, AT WHICH A PANEL OF THE BOARD SHALL CONSIDER THE GROUNDS RELATING TO SUMMARY SUSPENSION OF THE PHYSICIAN'S LICENSE AND VOTE ON SUCH ACTION. SUCH PANEL SHALL SERVE WRITTEN NOTICE ON THE PHYSICIAN NOT LESS THAN TWENTYFOUR HOURS BEFORE SUCH SUMMARY SUSPENSION HEARING. SUCH NOTICE SHALL INFORM THE PHYSICIAN OF SUCH PANEL'S INTENTION TO CONSIDER AND IMPOSE A SUMMARY SUSPENSION OF HIS OR HER LICENSE AND OF SUCH PHYSICIAN'S RIGHT TO ATTEND AND PRESENT EVIDENCE AT SUCH HEARING. IF PROPER NOTICE IS GIVEN, THE ATTENDANCE OF SUCH PHYSICIAN IS NOT REQUIRED FOR THE PANEL TO VOTE ON SUCH MATTER.
(b) IF THE PANEL VOTES TO SUMMARILY SUSPEND A PHYSICIAN'S LICENSE, SUCH PHYSICIAN SHALL BE ENTITLED TO A FORMAL HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE ON SUCH SUMMARY SUSPENSION WITHIN THREE BUSINESS DAYS AFTER THE DATE OF SUCH ACTION. THE ISSUE BEFORE THE ADMINISTRATIVE LAW JUDGE SHALL BE WHETHER THERE IS SUFFICIENT EVIDENCE FOR SUMMARY SUSPENSION.
(c) A COMPLETE RECORD OF THE SUMMARY SUSPENSION HEARING SHALL BE KEPT AND MADE AVAILABLE TO THE BOARD AND THE PHYSICIAN.
(d) A SUMMARY SUSPENSION IS NOT VALID UNLESS FORMAL DISCIPLINARY PROCEEDINGS ARE INITIATED SIMULTANEOUSLY BY THE BOARD.
(16) (a) THE BOARD MAY, BY AGREED ORDER OR AFTER A FORMAL PROCEEDING, IMPOSE A NONDISCIPLINARY REHABILITATION ORDER ON ANY PHYSICIAN OR APPLICANT FOR LICENSURE BASED ON ONE OR MORE OF THE FOLLOWING:
(I) SUCH PHYSICIAN'S OR APPLICANT'S EXCESSIVE USE OF DRUGS DIRECTLY RESULTING FROM HABITUATION OR ADDICTION CAUSED BY MEDICAL CARE OR TREATMENT PROVIDED BY ANOTHER PHYSICIAN;
(II) SUCH PHYSICIAN'S OR APPLICANT'S SELFREPORTED EXCESSIVE USE OF DRUGS OR ALCOHOL DURING THE LAST FIVE YEARS THAT COULD ADVERSELY AFFECT HIS OR HER ABILITY TO PRACTICE MEDICINE SAFELY, BUT ONLY IF SUCH PHYSICIAN OR APPLICANT WAS NOT PREVIOUSLY THE SUBJECT OF A SUBSTANCEABUSERELATED ORDER OF THE BOARD; OR
(III) FINDINGS OF IMPAIRMENT BASED ON AN ADMISSION BY THE PHYSICIAN OR A MENTAL OR PHYSICAL EXAMINATION OFFERED TO ESTABLISH SUCH IMPAIRMENT IN AN EVIDENTIARY HEARING BEFORE THE BOARD, AT WHICH HEARING SUCH PHYSICIAN OR APPLICANT WAS GIVEN AN OPPORTUNITY TO BE HEARD. SUCH FINDINGS SHALL INDICATE THAT SUCH PHYSICIAN OR APPLICANT SUFFERS FROM A POTENTIALLY DANGEROUS LIMITATION OR INABILITY TO PRACTICE MEDICINE WITH REASONABLE SKILL AND SAFETY BY REASON OF ILLNESS OR A PHYSICAL OR MENTAL CONDITION.
(b) A REHABILITATION ORDER ENTERED PURSUANT TO THIS SUBSECTION (16) SHALL BE A NONDISCIPLINARY CONFIDENTIAL ORDER OF THE BOARD AND SHALL CONTAIN FINDINGS OF FACT AND CONCLUSIONS OF LAW.
(c) A REHABILITATION ORDER ENTERED PURSUANT TO THIS SUBSECTION (16) MAY REVOKE, CANCEL, OR SUSPEND A PHYSICIAN'S LICENSE OR PLACE A PHYSICIAN'S LICENSE UNDER PROBATION, RESTRICTION, OR ANY OTHER TERM AND CONDITION AUTHORIZED BY THIS SECTION OR AGREED TO BY THE BOARD AND THE PHYSICIAN SUBJECT TO THE ORDER.
SECTION 4. Repeal. 1236123 (1) (c), Colorado Revised Statutes, is repealed as follows:
registration fees. (1) (c)
for relicensure shall not be required to attend and complete continuing
medical education programs, except as directed by the board to
correct deficiencies of training or education as directed under
section 1236118 (5) (g) (III) (B).
SECTION 5. Effective date applicability. This act shall take effect July 1, 1998, and shall apply to unprofessional acts committed and disciplinary actions taken on or after said date.
SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.