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Colorado Medical Bd. v. McLaughlin

Supreme Court of Colorado, En Banc

November 12, 2019

Scott Storm MCLAUGHLIN, M.D., Respondent.

Page 842

          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 17CA73

          Attorneys for Petitioner: Philip J. Weiser, Attorney General, Ashley E. Moller, Senior Assistant Attorney General, Sierra Ward, Senior Assistant Attorney General, Denver, Colorado, Maxfield Gunning, LLP, Eric H. Maxfield, Boulder, Colorado

         Attorneys for Respondent: Hershey Decker Drake, Carmen Nicole Decker, Kaylyn Peister Lone Tree, Colorado



Page 843

         [¶1] In this case, we are asked to determine whether an investigative subpoena issued by the Colorado Medical Board (the "Board") can have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment (the "CDPHE") pursuant to a policy that violated the Open Meetings Law (the "OML") or the State Administrative Procedure Act (the "APA").[1]

         [¶2] In Doe v. Colorado Department of Public Health & Environment, 2019 CO 92, 451 P.3d 851, which we also decide today, we conclude that (1) the CDPHE, as a state agency, is not a "state public body" under the OML and therefore could not violate that statute and (2) the CDPHE did not violate the APA in developing the policy at issue or in referring doctors to the Board under that policy. For this reason alone, we necessarily reject Scott McLaughlin’s argument that the investigative subpoena lacked a lawfully authorized purpose because it was based on a policy that violated the OML and the APA.

         [¶3] Even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, however, we still would conclude that the Board’s investigative subpoena had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose.

         [¶4] Accordingly, we reverse the judgment of the division below and remand this case for further proceedings consistent with this opinion.

          I. Facts and Procedural History

         [¶5] McLaughlin is a physician licensed to practice medicine in Colorado. As part of his practice, he evaluates patients to see if they have a qualifying condition that would benefit from the use of medical marijuana.

         [¶6] Information related to medical marijuana in Colorado is maintained by the CDPHE in a confidential registry that includes the names of all patients who have applied for and are entitled to receive a marijuana registry identification card, as well as the names and contact information for the patients’ physicians and, if applicable, their primary caregivers. Colo. Const. art. XVIII, § 14(3)(b); Dep’t of Pub. Health and Env’t, 5 Colo. Code Regs. 1006-2:1(A) (2019). If the CDPHE has reasonable cause to believe that a physician has violated either section 14 of article XVIII of the state constitution, section 25-1.5-106(5)(a)-(c), C.R.S. (2019), or the rules promulgated by the CDPHE pursuant to section 25-1.5-106(3), all of which govern physicians who certify medical conditions for applicants to the medical marijuana program, then the CDPHE may refer the matter to the Board for an investigation and determination. § 25-1.5-106(6); 5 Colo. Code Regs. 1006-2:8(B) (2019).

         [¶7] In May 2014, the CDPHE implemented Medical Marijuana Policy No. 2014-01 ("the Referral Policy"). The Referral Policy provides that the CDPHE will use its statistical reviews of physician medical marijuana recommendations to determine whether reasonable cause exists to refer a physician to the Board for investigation. Factors to be considered include (1) whether a physician has a high caseload, as determined by the number of patients for whom medical marijuana is recommended (a high caseload is calculated as 3,521 or more patient recommendations in one year); (2) whether a physician recommended increased plant counts for more than thirty percent of his or her caseload; and (3) whether more than one-third of the physician’s patient caseload is under the age of thirty. The CDPHE referred McLaughlin to the Board for investigation on the ground that he allegedly exceeded one of these thresholds.

         [¶8] Thereafter, the Board served a subpoena duces tecum on McLaughlin, ordering him to produce his complete medical records for

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certain identified patients whom he examined on specified dates between August 2014 and January 2015. The Board informed McLaughlin that this subpoena was part of an investigation into his medical marijuana recommendations for a possible violation of the Colorado Medical Practice Act, § § 12-240-101 to -145, C.R.S. (2019).[2] The Board further advised McLaughlin that its investigation was based on ...

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