Colorado § 12-240-106 - Powers and duties of board - limitation on authority - rules.

§ 12-240-106. Powers and duties of board - limitation on authority - rules.

(1) In addition to all other powers and duties conferred and imposed upon the board by this article 240, the board has the following powers and duties to:

(a) Promulgate rules pursuant to section 12-20-204 that are fair, impartial, and nondiscriminatory;

(b) Make investigations, hold hearings, and take evidence in accordance with section 12-20-403 in all matters relating to the exercise and performance of the powers and duties vested in the board;

(c) Aid law enforcement in the enforcement of this article 240 and in the prosecution of all persons, firms, associations, or corporations charged with the violation of any of its provisions; and

(d) Adopt rules as necessary in accordance with section 12-240-130.5 to implement the requirement for continuing medical education for physicians.

(2) To facilitate the licensure of qualified applicants and address the unlicensed practice of medicine, the unlicensed practice as a physician assistant, and the unlicensed practice as an anesthesiologist assistant, the president of the board shall establish a licensing panel in accordance with section 12-240-116 to perform licensing functions in accordance with this article 240 and review and resolve matters relating to the unlicensed practice of medicine, unlicensed practice as a physician assistant, and unlicensed practice as an anesthesiologist assistant. Two panel members constitute a quorum of the panel. Any action taken by a quorum of the panel constitutes action by the board.

(3) To facilitate the licensure of a physician under the "Interstate Medical Licensure Compact Act", part 36 of article 60 of title 24, the board shall obtain a set of fingerprints from an applicant for licensure under the compact and shall forward the fingerprints to the Colorado bureau of investigation for the purpose of obtaining a fingerprint-based criminal history record check. Upon receipt of fingerprints and payment for the costs, the Colorado bureau of investigation shall conduct a state and national fingerprint-based criminal history record check using records of the Colorado bureau of investigation and the federal bureau of investigation. The board is the authorized agency to receive information regarding the result of a national criminal history record check. The applicant whose fingerprints are checked shall pay the actual costs of the state and national fingerprint-based criminal history record check.

(4) The authority granted the board under the provisions of this article 240 shall not be construed to authorize the board to arbitrate or adjudicate fee disputes between licensees or between a licensee and any other party.

Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1173, § 1, effective October 1. L. 2024: (1)(b) and (1)(c) amended and (1)(d) added, (HB 24-1153), ch. 385, p. 2625, § 2, effective August 7.

Editor's note: Subsection (1) is similar to former § 12-36-104 (1); subsection (2) is similar to former § 12-36-104 (3); subsection (3) is similar to former § 12-36-104 (4); and subsection (4) is similar to former § 12-36-104.5, as those sections existed prior to 2019.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

This section does not deny due process of law because it creates a tribunal, provides for notice and hearing, for evidence and argument. People v. Max, 70 Colo. 100, 198 P. 150 (1921).

In order to accomplish the purpose of this article, protecting the public against unauthorized, unqualified, and improper practice of the healing arts in this state, the state board of medical examiners must have the discretion to determine the generally accepted standard of medical practice. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo. 1994).

A trial court has no jurisdiction to interfere with officers of the state whose duties are imposed by statute. Colo. State Bd. of Med. Exam'rs v. District Court, 138 Colo. 227, 331 P.2d 502 (1958).

Therefore, a district court does not have jurisdiction to prohibit a branch of the executive department such as the state board of medical examiners from carrying out its statutory functions. Colo. State Bd. of Med. Exam'rs v. District Court, 138 Colo. 227, 331 P.2d 502 (1958).

This section explicitly allows the board of medical examiners to request and receive complete records of physician review proceedings from a hospital. Colo. State Bd. of Med. Exam'rs v. Khan, 984 P.2d 670 (Colo. App. 1999).

When read in conjunction with § 12-36-118 (4), this section authorizes the attorney general to issue subpoenas and make investigations before and after the filing of the formal complaint. Norton v. Colo. Bd. of Med. Exam'rs, 821 P.2d 897 (Colo. App. 1991).

This section authorizes state board of medical examiners to issue subpoenas in connection with any investigation described in § 12-36-118 (4). Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995); Colo. Med. Bd. v. Boland, 2018 COA 39, 488 P.3d 5, aff'd, 2019 CO 94, 451 P.3d 850; Colo. Med. Bd. v. McLaughlin, 2019 CO 93, 451 P.3d 841.

State board of medical examiners is not required to demonstrate that subpoena duces tecum is justified by more than speculation or conjecture; rather, board is required only to demonstrate that the subpoena was issued for a lawful purpose under the procedures established by this article. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995); Colo. Med. Bd. v. Boland, 2018 COA 39, 488 P.3d 5, aff'd, 2019 CO 94, 451 P.3d 850.

If the medical board issues a subpoena for a lawful purpose, even if the policy prompting the board's investigation is in violation of the open meetings law, the subpoena is lawful. Colo. Med. Bd. v. Boland, 2018 COA 39, 488 P.3d 5, aff'd, 2019 CO 94, 451 P.3d 850; Colo. Med. Bd. v. McLaughlin, 2019 CO 93, 451 P.3d 841.

1995 amendment to § 12-36-118 allows investigation of a physician by the inquiry panel prior to the initiation of the informal complaint procedure and there is nothing in that section that would indicate that the permissible scope of the pre-response investigation excludes the issuance of subpoenas. Colo. State Bd. of Med. Exam'rs v. Khan, 984 P.2d 670 (Colo. App. 1999).

Probable cause to believe a statutory violation has occurred is not required before issuing an investigative subpoena under this section. Rather, justification for issuance is grounded upon a showing that: (1) the investigation is for a lawfully authorized purpose; (2) the information sought is relevant to the issues being investigated; and (3) the subpoena is sufficiently specific to obtain documents that are adequate but not excessive for the inquiry. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).

Subpoena duces tecum issued under this section that required doctor to produce complete office records for all cases in which device was used could not be enforced where board could not produce copy of written complaint and clear exposition of act or omission which, if found to have occurred, would constitute unprofessional conduct. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).