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Colorado Medical Board v. Boland

Court of Appeals of Colorado, First Division

March 22, 2018

Colorado Medical Board, Petitioner-Appellee,
James Boland, MD, Respondent-Appellant.

          City and County of Denver District Court No. 15CV30883 Honorable Ross B.H. Buchanan, Judge

          Cynthia H. Coffman, Attorney General, Eric Maxfield, First Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Hershey Decker PLLC, Carmen N. Decker, Matthew George, Lone Tree, Colorado, for Respondent-Appellant


          RICHMAN, JUDGE

         ¶ 1 In this subpoena enforcement action, respondent, Dr. James Boland, appeals the district court's judgment enforcing a subpoena issued by plaintiff, the Colorado Medical Board (Board). The Board issued the subpoena after the Colorado Department of Public Health and Environment (CDPHE) referred Dr. Boland to the Board. On appeal, Dr. Boland contends the Board subpoena was not issued for a lawful purpose because CDPHE adopted the policy prompting the Board's investigation in violation of Colorado's Open Meetings Law, the State Administrative Procedure Act (APA), and the Colorado and United States Constitutions. We disagree, conclude the Board issued the subpoena for a lawful purpose, and affirm the district court's judgment.

         ¶ 2 We recognize that another divided division of this court is announcing today Colorado Medical Board v. McLaughlin, 2018 COA 41, reversing the judgment of the district court enforcing a subpoena issued on the basis of the same challenged policy. In McLaughlin, the division concludes that the policy is invalid, and therefore that subpoena lacked a lawful purpose. For the reasons stated herein, we disagree with that analysis.

         I. Background

         A. The Subpoena

         ¶ 3 Dr. Boland is a physician licensed to practice in Colorado. In November 2014, Dr. Boland received a subpoena duces tecum from the Board. The subpoena ordered him to produce medical records for patients age thirty or under examined on three particular dates in 2013.

         ¶ 4 A letter accompanying the subpoena explained that the Board had received information regarding Dr. Boland's conduct as a physician and a possible violation of the Medical Practice Act. The letter requested a response from Dr. Boland within thirty days.

         ¶ 5 The letter also noted that the Board had received a complaint from CDPHE related to Dr. Boland's medical marijuana recommendations. Specifically, the letter stated that "the Medical Marijuana Registry's physician referral policy dictate[d] that [CDPHE] will refer physicians who are above the approved threshold for one or more of" three enumerated criteria: (1) a caseload of 3521 medical marijuana patient recommendations per year; (2) recommendations of an increased plant count for more than thirty percent of patients; or (3) a patient caseload in which over one-third is under the age of thirty. According to the letter, CDPHE referred Dr. Boland to the Board for investigation on the basis of the last two criteria.

         ¶ 6 When he received the subpoena and letter, Dr. Boland was unaware of any "physician referral policy." He sent a written objection to the Board, arguing that CDPHE's referral policy was invalidly adopted. On that basis, Dr. Boland refused to produce the subpoenaed records.

         ¶ 7 In March 2015, the Board filed an application for an order enforcing the subpoena, citing section 12-36-104, C.R.S. 2017. In June 2016, the district court granted the Board's application and ordered Dr. Boland to produce the subpoenaed records. That order is the subject of this appeal. The district court concluded that, even if the physician referral policy was invalid, only CDPHE could be enjoined from enforcing it, not the Board. The district court subsequently stayed enforcement of the order pending this appeal.

         B. CDPHE and the Board

         ¶ 8 Pursuant to an executive order signed by Colorado's governor, CDPHE is the health agency designated to manage Colorado's medical marijuana program. See § 25-1.5-106(2)(f), C.R.S. 2017; see generally § 25-1.5-106. CDPHE is required to promulgate rules governing certain aspects of the program. See § 25-1.5-106(3)(a) (CDPHE "shall . . . promulgate rules of administration"); see also Colo. Const. art. XVIII, § 14(9) (stating that the state health agency "shall also enact rules of administration").

         ¶ 9 For example, CDPHE must promulgate rules to establish a confidential registry of patients who are entitled to receive a medical marijuana identification card. § 25-1.5-106(3)(a)(I). CDPHE is also required to promulgate rules concerning the conditions for issuing registry identification cards to patients, which entails creating "standards for ensuring that [CDPHE] issues a registry identification card to a patient only if he or she has a bona fide physician-patient relationship with a physician in good standing." § 25-1.5-106(3)(a)(V). If CDPHE "has reasonable cause to believe" that a physician violated rules promulgated pursuant to its rulemaking authority, it can refer the matter to the Board for "an investigation and determination." § 25-1.5-106(6)(a).[1]

         ¶ 10 The Board is a body created by the Medical Practice Act. § 12-36-103(1)(a)(I), C.R.S. 2017. The Board is tasked with investigating allegations of "unprofessional conduct." § 12-36-117, C.R.S. 2017. It is authorized by statute to "[m]ake investigations, hold hearings, and take evidence." § 12-36-104(1)(b)(I); see also § 12-36-118, C.R.S. 2017 (describing the structure of the Board's inquiry and hearing panels, and the process for initiating a complaint against a physician). In the exercise of its investigatory function, the Board has the power to issue subpoenas to compel production of "materials in any hearing, investigation, accusation, or other matter coming before [it]." § 12-36-104(1)(b)(II).

         C. Development of the Physician Referral Policy

         ¶ 11 After receiving the subpoena and accompanying letter, Dr. Boland filed a Colorado Open Records Act request with CDPHE, the Board, and the Department of Regulatory Agencies, asking for public records related to the drafting of the physician referral policy. In response, the Board produced internal communications detailing the policy's evolution and adoption.

         ¶ 12 The correspondence revealed that in the fall of 2013, based on a recent state audit, "CDPHE officials reached out to the Board requesting assistance in developing reporting parameters for medical marijuana prescribers." The Board and Office of Investigations (OI) (a subdivision of the Department of Regulatory Agencies) worked with CDPHE to identify and define potential reporting criteria. An email states that after a period of extended silence from CDPHE, the Board and OI took a leadership role and "frequently circled back" with CDPHE to promote progression of the project. CDPHE subsequently adopted an internal policy based on the criteria identified and/or defined by the CDPHE/Board/OI workgroup.

         ¶ 13 On May 15, 2014, CDPHE issued the physician referral policy, titled "Medical Marijuana Policy Number 2014-01" (Policy 2014-01). The policy states CDPHE will refer physicians to the Board for investigation based on the number of patients, the amount of marijuana recommended, and the age of the patients.

         ¶ 14 Dr. Boland alleges, and the Board does not dispute, that the policy was not available to the public until April 2015, nearly a year later, and that no public meeting was ever held on Policy 2014-01.

         D. Related Litigation

         ¶ 15 In addition to the instant case, several other pending actions have challenged the validity of Policy 2014-01. Six other subpoena enforcement actions have been filed against individual physicians who were referred to the Board based on Policy 2014-01. Five of these cases have been stayed pending this appeal. The sixth action has been separately appealed to this court. Another division of this court decides that case today. McLaughlin, 2018 COA 41.

         ¶ 16 Dr. Boland and eight other physicians have directly challenged the validity of Policy 2014-01 in yet another action. In that case, however, the district court, in an order entered by Judge Hoffman on October 14, 2015, dismissed the relevant claims against the Board, stating as follows:

This claim fails because the secret policy at issue was, by plaintiff's own description, a policy involving the CDPHE's referral of cases to [the Board] for investigation. That is, it was CDPHE's policy, not [the Board's] policy. If this policy was in fact unlawfully adopted and is ultimately declared void, any injunctive relief would necessarily be aimed at CDPHE to prohibit it from referring cases to [the Board] under the void policy. Nothing at all about the policy prevents [the Board] from initiating its own investigations based on whatever information that come to it from whatever source, proper or improper.

         ¶ 17 The district court in that case later ruled, in October 2016, that Policy 2014-01 was void and enjoined CDPHE from referring physicians to the Board under the policy. That decision is also the subject of an appeal to this court. See John Does v. Colo. ...

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