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Boland v. Colorado Medical Bd.

Supreme Court of Colorado, En Banc

November 12, 2019

James BOLAND, M.D., Petitioner,

          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 16CA1269

          Attorneys for Petitioner: Hershey Decker, Drake Carmen N. Decker, Kaylyn Peister, Lone Tree, Colorado

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



         [¶1] In this companion case to Colorado Medical Board v. McLaughlin, 2019 CO 93, __ P.3d __, which we are also announcing today, we are again 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] For the reasons articulated in McLaughlin, ¶¶ 22-37, we conclude that (1) because the CDPHE, as a state agency and not a "state public body," could not violate the OML and did not violate the APA in developing the policy at issue or in referring doctors to the Board under that policy, James Boland’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 is based on a flawed premise and is therefore unpersuasive and (2) even if the CDPHE’s adoption of the policy at issue and its reliance on it were invalid, the Board’s investigative subpoena nonetheless 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.

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

Page 849

          I. Facts and Procedural History

         [¶4] Boland is a physician licensed to practice medicine in Colorado. He primarily examines patients to determine if they would benefit from the use of medical marijuana.

         [¶5] 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).

         [¶6] 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.

         [¶7] In June 2014, the CDPHE referred Boland to the Board for investigation based on his "[h]igh plant count recommendations and high percent of patients under age of 30 [sic] for medical marijuana referrals." Thereafter, the Board sent Boland a letter informing him that it had received "concerning information" regarding his conduct as a licensed physician, specifically involving a possible violation of the Colorado Medical Practice Act, § § 12-240-101 to -145, C.R.S. (2019).[2] The letter explained that the Board was required by law to investigate the complaint, which the Board noted had been initiated by the CDPHE pursuant to the Referral Policy. The Board thus requested that Boland send a written response to the allegations within thirty days and further indicated that it would be issuing a subpoena for pertinent patient records relating to the complaint. The Board then sent Boland a subpoena ordering him to produce complete medical records for any and all patients aged thirty and younger who were examined on three specifically identified dates.

         [¶8] Boland refused to comply with the subpoena, and he and several other physicians whom the CDPHE had referred to the Board and who had received subpoenas from the Board filed suit in the Denver District Court, seeking, among other things, to enjoin the Board from enforcing its subpoenas. As grounds therefor, the physicians alleged, among other things, that the CDPHE and the Board ...

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