CO Code § 12-30-204 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 30 - Provisions Applicable to Health Care Professions and Occupations|Part 2 - Professional Review of Health Care Providers|§ 12-30-204. Establishment of Professional Review Committees - Function - Rules

  A professional review committee may be established pursuant to this section to review and evaluate the competence of, the quality and appropriateness of patient care provided by, or the professional conduct of, any person licensed under article 240 of this title 12 or any advanced practice registered nurse.    Licensed physicians who are actively engaged in the practice of medicine in this state must constitute a majority of the voting members of any professional review committee established pursuant to this section for physicians and physician assistants; except that physicians need not constitute the majority of the voting members of a governing board authorized by subsection (5)(i) of this section or an independent third party designated by a governing board under subsection (9)(b) of this section.    A professional review committee that is reviewing the competence of, the quality and appropriateness of patient care provided by, or the professional conduct of, an advanced practice registered nurse must either:   Have, as a voting member, at least one advanced practice registered nurse with a scope of practice similar to that of the person who is the subject of the review; or    Engage, to perform an independent review as appropriate, an independent person who is an advanced practice registered nurse with a scope of practice similar to that of the person who is the subject of the review. The person conducting the independent review must be a person who was not previously involved in the review. (3.5) A professional review committee of a hospital licensed or certified by the department of public health and environment pursuant to section 25-1.5-103 (1)(a) is encouraged to appoint a consumer to serve as a nonvoting member of the professional review committee, so long as the consumer complies with the hospital's conflict of interest policies, enters into a confidentiality agreement acceptable to the hospital, and enters into a business associate agreement in accordance with the federal “Health Insurance Portability and Accountability Act of 1996”, Pub.L. 104-191, as amended.       A quality improvement organization, as defined pursuant to 42 U.S.C. sec. 1320c-1, or any other organization performing similar review services under federal or state law is an approved professional review committee under this part 2.    A professional review committee established by any of the following authorized entities is an approved professional review committee under this part 2 if it operates in compliance with written bylaws, policies, or procedures that are in compliance with this part 2 and that have been approved by the authorized entity's governing board and if it is registered with the division in accordance with section 12-30-206:   The medical staff of a hospital licensed pursuant to part 1 of article 3 of title 25 or certified pursuant to section 25-1.5-103 (1)(a)(II);    The medical staff of a hospital-related corporation. For the purposes of this subsection (5)(b), an entity is a “hospital-related corporation” if the licensed or certified hospital or holding company of the licensed or certified hospital has ownership or control of the entity.    A society or association of physicians whose membership includes not less than one-third of the doctors of medicine or doctors of osteopathy licensed to practice and residing in this state, if the physician whose services are the subject of the review is a member of the society or association;    A society or association of advanced practice registered nurses who reside in this state, if the advanced practice registered nurse whose services are the subject of the review is a member of the society or association;    A society or association of physicians licensed to practice and residing in this state and specializing in a specific discipline of medicine, whose society or association has been designated by the medical board as a specialty society or association representative of physicians practicing the specific discipline of medicine, if the physician whose services are the subject of the review is a member of the specialty society or association;    A society or association of advanced practice registered nurses who practice in a specified nursing role and population focus, as defined by the nursing board, which society or association has been designated by the nursing board as the specific nursing society or association representative of those advanced practice registered nurses practicing in that nursing role and population focus, if the advanced practice registered nurse whose services are the subject of the review is a member of the designated nursing society or association;    An individual practice association or a preferred provider organization consisting of persons licensed under article 240 of this title 12 or of advanced practice registered nurses, or a medical group that predominantly serves members of a health maintenance organization licensed pursuant to parts 1 and 4 of article 16 of title 10. A professional review committee established pursuant to this subsection (5)(g) has jurisdiction to review persons licensed under article 240 of this title 12 or advanced practice registered nurses only if the persons licensed under said article or the advanced practice registered nurses are members of the association or organization creating and authorizing that committee; except that the professional review committee may review the care provided to a particular patient referred by a member of the association or organization to another person who is not a member of the association or organization and is licensed under article 240 of this title 12 or is an advanced practice registered nurse.    A corporation authorized pursuant to article 3 of title 10 to insure persons licensed under article 240 of this title 12 or advanced practice registered nurses or any other organization authorized to insure such persons in this state when designated by the medical board or nursing board under subsection (6) of this section;    The governing board of any authorized entity that has a professional review committee established pursuant to article 240 of this title 12 or part 1 of article 255 of this title 12;    Any professional review committee established or created by a combination or pooling of any authorized entities;      A nonprofit corporation or association consisting of representatives from a statewide professional society and a statewide hospital association. The association must consist of persons licensed under article 240 of this title 12 or advanced practice registered nurses, hospital administrators, and hospital trustees, with a majority of the representatives being persons licensed under article 240 of this title 12 when the subject of the investigation is a person licensed under article 240 of this title 12, and at least one of the representatives being an advanced practice registered nurse when the subject of the investigation is an advanced practice registered nurse. The association may establish, or contract for, one or more professional review committees to review the care by hospital staff personnel who are licensed under article 240 of this title 12 or are advanced practice registered nurses, with priority given to small rural hospital staffs. These professional review services must be available statewide on a fee-for-service basis to licensed or certified hospitals at the joint request of the governing board and the medical or nursing staff of the hospital or at the sole request of the governing board of the hospital. If a member being reviewed specializes in a generally recognized specialty of medicine or nursing, at least one of the health-care providers on the professional review committee must be a person who is licensed under article 240 of this title 12 or is an advanced practice registered nurse and who practices such specialty. (k) (I) A nonprofit corporation or association consisting of representatives from a statewide professional society and a statewide hospital association. The association must consist of persons licensed under article 240 of this title 12 or advanced practice registered nurses, hospital administrators, and hospital trustees, with a majority of the representatives being persons licensed under article 240 of this title 12 when the subject of the investigation is a person licensed under article 240 of this title 12, and at least one of the representatives being an advanced practice registered nurse when the subject of the investigation is an advanced practice registered nurse. The association may establish, or contract for, one or more professional review committees to review the care by hospital staff personnel who are licensed under article 240 of this title 12 or are advanced practice registered nurses, with priority given to small rural hospital staffs. These professional review services must be available statewide on a fee-for-service basis to licensed or certified hospitals at the joint request of the governing board and the medical or nursing staff of the hospital or at the sole request of the governing board of the hospital. If a member being reviewed specializes in a generally recognized specialty of medicine or nursing, at least one of the health-care providers on the professional review committee must be a person who is licensed under article 240 of this title 12 or is an advanced practice registered nurse and who practices such specialty.    For purposes of the introductory portion to this subsection (5) and this subsection (5)(k), the bylaws, policies, or procedures must be in compliance with this part 2 and approved by the nonprofit corporation or association.       The medical or nursing staff of an ambulatory surgical center licensed pursuant to part 1 of article 3 of title 25;    A professional services entity organized pursuant to section 12-240-138;    A provider network that is organized pursuant to part 3 of article 18 of title 6 and includes persons licensed under article 240 of this title 12 or advanced practice registered nurses;    A health system that includes two or more authorized entities with a common governing board;    A trust organization established under article 70 of title 11;    An entity licensed pursuant to parts 1 and 4 of article 16 of title 10;    An accountable care organization established under the federal “Patient Protection and Affordable Care Act”, Pub.L. 111-148, as amended, or other organization with a similar function;    A hospital licensed pursuant to part 1 of article 3 of title 25 or certified pursuant to section 25-1.5-103 (1)(a)(II); and    An ambulatory surgical center licensed pursuant to part 1 of article 3 of title 25.       The medical board and the nursing board, with respect to the licensees subject to their jurisdiction, may establish by rule procedures necessary to authorize other health-care or physician organizations or professional societies as authorized entities that may establish professional review committees.      A professional review committee acting pursuant to this part 2 may investigate or cause to be investigated:   The qualifications and competence of any person licensed under article 240 of this title 12 or any advanced practice registered nurse who seeks to subject himself or herself to the authority of any authorized entity; or    The quality or appropriateness of patient care rendered by, or the professional conduct of, any person licensed under article 240 of this title 12 or any advanced practice registered nurse who is subject to the authority of the authorized entity.       The professional review committee shall conduct the investigation in conformity with written bylaws, policies, or procedures adopted by the authorized entity's governing board.       The written bylaws, policies, or procedures of any professional review committee for persons licensed under article 240 of this title 12 or advanced practice registered nurses must provide for at least the following:     Except as provided in subsection (8)(a)(II) of this section, if the findings of any investigation indicate that a person licensed under article 240 of this title 12 or an advanced practice registered nurse who is the subject of the investigation is lacking in qualifications or competency, has provided substandard or inappropriate patient care, or has exhibited inappropriate professional conduct and the professional review committee takes or recommends an action to adversely affect the person's membership, affiliation, or privileges with the authorized entity, the professional review committee shall hold a hearing to consider the findings and recommendations unless the person waives, in writing, the right to a hearing or is given notice of a hearing and fails to appear. (a) (I) Except as provided in subsection (8)(a)(II) of this section, if the findings of any investigation indicate that a person licensed under article 240 of this title 12 or an advanced practice registered nurse who is the subject of the investigation is lacking in qualifications or competency, has provided substandard or inappropriate patient care, or has exhibited inappropriate professional conduct and the professional review committee takes or recommends an action to adversely affect the person's membership, affiliation, or privileges with the authorized entity, the professional review committee shall hold a hearing to consider the findings and recommendations unless the person waives, in writing, the right to a hearing or is given notice of a hearing and fails to appear.    If the professional review committee is submitting its findings and recommendations to another professional review committee for review, only one hearing is necessary prior to any appeal before the governing board.       A person who has participated in the course of an investigation is disqualified as a member of the professional review committee that conducts a hearing pursuant to subsection (8)(a) of this section, but the person may participate as a witness in the hearing.    The authorized entity shall give to the subject of any investigation under this subsection (8) reasonable notice of the hearing and of any finding or recommendation that would adversely affect the person's membership, affiliation, or privileges with the authorized entity, and the subject of the investigation has a right to be present, to be represented by legal counsel at the hearing, and to offer evidence in the person's own behalf.    After the hearing, the professional review committee that conducted the hearing shall make any recommendations it deems necessary to the governing board, unless otherwise provided by federal law or regulation.    The professional review committee shall give a copy of the recommendations to the subject of the investigation, who then has the right to appeal to the governing board to which the recommendations are made with regard to any finding or recommendation that would adversely affect his or her membership, affiliation, or privileges with the authorized entity.    Repealed.         All governing boards shall adopt written bylaws, policies, or procedures under which a person who is licensed under article 240 of this title 12 or is an advanced practice registered nurse and who is the subject of an adverse recommendation by a professional review committee may appeal to the governing board following a hearing in accordance with subsection (8) of this section. The bylaws, policies, or procedures must provide that the person be given reasonable notice of his or her right to appeal and, unless waived by the person, has the right to appear before the governing board, to be represented by legal counsel, and to offer the argument on the record that the person deems appropriate.    The bylaws may provide that a committee of not fewer than three members of the governing board may hear the appeal. Also, the bylaws may allow for an appeal to be heard by an independent third party designated by a governing board under this subsection (9)(b).       All governing boards that are required to report their final actions to the medical board or the nursing board, as appropriate, are not otherwise relieved of their obligations by virtue of this part 2.      Except as specified in subsection (11)(b) of this section, the records of an authorized entity, its professional review committee, and its governing board are not subject to subpoena or discovery and are not admissible in any civil suit.    Subject to subsection (14) of this section, the records are subject to subpoena and available for use:   By either party in an appeal or de novo proceeding brought pursuant to this part 2;    By a person licensed under article 240 of this title 12 or an advanced practice registered nurse in a suit seeking judicial review of an action by the governing board;    By the department of public health and environment in accordance with its authority to issue or continue a health facility license or certification for an authorized entity;    By CMS in accordance with its authority over federal health-care program participation by an authorized entity;    By an authorized entity or governing board seeking judicial review;    By the medical board within the scope of its authority over licensed physicians and physician assistants; and    By the nursing board within the scope of its authority over advanced practice registered nurses.            Except as provided in subsection (12)(b) of this section, the records of an authorized entity or its professional review committee may be disclosed to:   The medical board, as requested by the medical board acting within the scope of its authority or as required or appropriate under this part 2 or article 240 of this title 12;    The nursing board, as requested by the nursing board acting within the scope of its authority or as required or appropriate under this part 2 or part 1 of article 255 of this title 12;    The department of public health and environment acting within the scope of its health facility licensing authority or as the agent of CMS;    CMS, in connection with the survey and certification processes for federal health-care program participation by an authorized entity; and    The Joint Commission or other entity granted deeming authority by CMS, in connection with a survey or review for accreditation.       The medical board, nursing board, and department of public health and environment shall not make further disclosures of any records disclosed by an authorized entity or its professional review committee under this section.       The records of an authorized entity or its professional review committee or governing board may be shared by and among authorized entities and their professional review committees and governing boards concerning the competence of, professional conduct of, or the quality and appropriateness of patient care provided by, a health-care provider who seeks to subject himself or herself to, or is currently subject to, the authority of the authorized entity.    Responding to a subpoena or disclosing or sharing of otherwise privileged records and information pursuant to subsection (11), (12), or (13) of this section does not constitute a waiver of the privilege specified in subsection (11)(a) of this section or a violation of the confidentiality requirements of subsection (16) of this section. Records provided to any governmental agency, including the department of public health and environment, the medical board, and the nursing board pursuant to subsection (11) or (12) of this section are not public records subject to the “Colorado Open Records Act”, part 2 of article 72 of title 24. A person providing the records to an authorized entity or its professional review committee or governing board, the department of public health and environment, the medical board, the nursing board, CMS, the Joint Commission, or other governmental agency is entitled to the same immunity from liability as provided under section 12-30-207 for the disclosure of the records.    Investigations, examinations, hearings, meetings, and other proceedings of a professional review committee or governing board conducted pursuant to this part 2 are exempt from any law requiring that proceedings be conducted publicly or that the records, including any minutes, be open to public inspection.    Except as otherwise provided in subsection (11), (12), or (13) of this section, all proceedings, recommendations, records, and reports involving professional review committees or governing boards are confidential.    A professional review committee or governing board that is constituted and conducts its reviews and activities in accordance with this part 2 is not an unlawful conspiracy in violation of section 6-4-104 or 6-4-105.      Original source documents are not protected from subpoena, discovery, or use in any civil action merely because they were considered by or presented to a professional review committee. Original source documents are subject to subpoena or discovery only from the original sources and are protected from subpoena or discovery from the professional review files of a professional review committee of an authorized entity except as provided below:   Upon subpoena or request for discovery for original source documents, an authorized entity shall provide a log of all original source documents contained in the authorized entity's professional review files including the source and nature of each original source document.    The individual patient in interest in a civil action by such person, next friend, or legal representative may subpoena or seek discovery of any original source document identified on the authorized entity's professional review committee log only if the original source document was not produced in response to a prior subpoena or discovery request to the original source.       This subsection (18) does not relieve any party of their obligation under the Colorado rules of civil procedure.        History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 780, § 1, effective October 1; (3.5) and (18) added and (8)(f) repealed,(SB 19-234), ch. 181, p. 2054, § 8, effective October 1. L. 2020: (5)(i) and (12)(a)(II) amended,(HB 20-1183), ch. 157, p. 698, § 44, effective July 1.    Editor's note:    This section is similar to former § 12-36.5-104 as it existed prior to 2019.    Before its relocation in 2019, this section was amended in SB 19-234. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from August 2, 2019, to October 1, 2019, see SB 19-234, chapter 181, Session Laws of Colorado 2019.     ANNOTATION   Law reviews. For article, “Representing Physicians in Hospital-Based Professional Review Actions”, see 25 Colo. Law. 57 (March 1996).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   A member of a professional review committee and a governing body that makes the final decision may participate in both the investigation and decision making process. N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828 (Colo. 2001).   The federal Protection and Advocacy for Mentally Ill Individuals Act (PAMII) requires disclosure of peer review and quality assurance records. To the extent Colorado's laws conflict with PAMII and the access to peer review and medical assurance records that PAMII provides, they are preempted. Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003).   Subsection (10)(a) protects records of a professional review committee from all forms of subpoena or discovery. The statute further protects professional review committee records from admissibility in civil suits, which include adjudicatory administrative proceedings. Colo. Med. Bd. v. Office of Admin. Courts, 2014 CO 51, 333 P.3d 70 .   Subsection (10) does not apply to an investigation by the state board of medical examiners because the board is not a peer review committee. DeSantis v. Simon, 209 P.3d 1069 (Colo. 2009).   A physician may subpoena a hospital's peer review committee records in an appeal of the governing board's action under subsection (10). Crow v. Penrose-St. Francis Healthcare, 2012 COA 43 , 292 P.3d 1018.