CO Code § 12-255-119 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 255 - Nurses and Nurse Aides|Part 1 - Nurses and Nurse Aides|§ 12-255-119. Disciplinary Procedures of the Board - Inquiry and Hearings Panels - Mental and Physical Examinations - Definitions - Rules

     The president of the board shall divide the other ten members of the board into two panels of five members each. Members representing the three different categories of membership (licensed practical nurses, professional nurses, and persons not licensed, employed, or in any way connected with, or with any financial interest in, any health-care facility, agency, or insurer) shall be divided between the two panels as equally as possible.    Each panel shall act as both an inquiry and a hearings panel. Members of the board may be assigned from one panel to the other by the president. The president may be a member of both panels, but in no event shall the president or any other member who has considered a complaint as a member of a panel acting as an inquiry panel take any part in the consideration of a formal complaint involving the same matter.    All matters referred to one panel for investigation shall be heard, if referred for formal hearing, by the other panel or a committee of the panel. However, in its discretion, either inquiry panel may elect to refer a case for formal hearing to a qualified administrative law judge, in lieu of a hearings panel of the board, for an initial decision pursuant to section 24-4-105.    The initial decision of an administrative law judge may be reviewed pursuant to section 24-4-105 (14) and (15) by the filing of exceptions to the initial decision with the hearings panel that would have heard the case if it had not been referred to an administrative law judge or by review upon the motion of the hearings panel. The respondent or the board's counsel shall file the exceptions.       Investigations shall be under the supervision of the panel to which they are assigned. The persons making the investigation shall report the results thereof to the assigning panel for appropriate action.        For the purposes of this section: (a) (I)For the purposes of this section:   “Grounds for discipline” includes grounds under sections 12-255-120 and 12-295-111.    “License” includes licensure for a practical nurse or professional nurse and licensure for a psychiatric technician.    “Nurse”, “licensee”, or “respondent” includes a practical nurse, a professional nurse, and a psychiatric technician as described in section 12-295-103 (4).    “Practice of nursing” includes the practice of practical nursing, the practice of professional nursing, and the practice as a psychiatric technician.       Written complaints relating to the conduct of a nurse licensed or authorized to practice nursing in this state may be made by any person or may be initiated by an inquiry panel of the board on its own motion. The nurse complained of shall be given notice, unless the board determines the complaint to be without merit of investigation, by first-class mail, and the notice shall state the nature of the complaint and shall state that the failure to respond in a materially factual and timely manner constitutes grounds for discipline. The nurse complained of shall be given thirty days to answer or explain in writing the matters described in such complaint. Upon receipt of the nurse's answer or at the conclusion of thirty days, whichever occurs first, the inquiry panel may take further action as set forth in subsection (3)(a)(III) of this section.    Upon receipt of the nurse's answer or the conclusion of thirty days, the inquiry panel may conduct a further investigation that may be made by one or more members of the inquiry panel, one or more nurses who are not members of the board, a member of the staff of the board, a professional investigator, or any other person or organization as the inquiry panel directs. The investigation shall be entirely informal.       The board shall cause an investigation to be made when the board is informed of:   Disciplinary action taken by an employer of a nurse against the nurse or resignation in lieu of a disciplinary action for conduct that constitutes grounds for discipline under section 12-255-120 or 12-295-111. The employer shall report the disciplinary action or resignation to the board.    An instance of a malpractice settlement or judgment against a nurse;    A nurse who has not timely renewed his or her license and the nurse is actively engaged in the practice of nursing.       On completion of an investigation, the inquiry panel shall make a finding that:   The complaint is without merit and no further action need be taken;    There is no reasonable cause to warrant further action on the complaint;    An instance of conduct occurred that does not warrant formal action by the board and that should be dismissed, but that indications of possible conduct by the nurse were noted that could lead to serious consequences if not corrected. In such a case, the board shall send a confidential letter of concern in accordance with section 12-20-404 (5) to the nurse against whom the complaint was made.    An instance of misconduct occurred that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit, in which case the board may issue and send a letter of admonition to the licensee in accordance with section 12-20-404 (4);    Facts were disclosed that warrant further proceedings by formal complaint, as provided in subsection (4) of this section, and that the complaint should be referred to the attorney general for preparation and filing of a formal complaint.            All formal complaints shall be heard and determined in accordance with subsection (4)(b) of this section and section 24-4-105. Except as provided in subsection (1) of this section, all formal hearings shall be conducted by the hearings panel. The nurse may be present in person or represented by counsel, or both, if so desired, to offer evidence and be heard in the nurse's own defense. At formal hearings, the witnesses shall be sworn and a complete record shall be made of all proceedings and testimony.    Except as provided in subsection (1) of this section, an administrative law judge shall preside at the hearing and shall advise the hearings panel on all legal matters in connection with the hearing as the panel may request. The administrative law judge shall provide such advice or assistance as the hearings panel may request in connection with the preparation of its findings and recommendations or conclusions. The administrative law judge may act in accordance with section 12-20-403 and perform other duties as the hearings panel may authorize the administrative law judge to perform. The administrative law judge shall have the qualifications provided in section 24-30-1003 (2).      To warrant a finding of grounds for discipline, the charges shall be established as specified in section 24-4-105 (7). Except as provided in subsection (1) of this section, the hearings panel shall make a report of its findings and conclusions that, when approved by a majority of those members of the hearings panel who have conducted the hearing pursuant to subsections (4)(a) and (4)(b) of this section, shall be the action of the board. (c) (I) To warrant a finding of grounds for discipline, the charges shall be established as specified in section 24-4-105 (7). Except as provided in subsection (1) of this section, the hearings panel shall make a report of its findings and conclusions that, when approved by a majority of those members of the hearings panel who have conducted the hearing pursuant to subsections (4)(a) and (4)(b) of this section, shall be the action of the board.    If it is found that the charges are unproven, the hearings panel, or an administrative law judge sitting in lieu of the hearings panel pursuant to subsection (1) of this section, shall enter an order dismissing the complaint.    If the hearings panel finds the charges proven and orders that discipline be imposed, it shall also determine the extent of the discipline, which may be in the form of a letter of admonition regarding a license or suspension for a definite or indefinite period, revocation, or nonrenewal of a license to practice. In addition to any other discipline that may be imposed pursuant to this section, the hearings panel may impose a fine of no less than two hundred fifty dollars but no more than one thousand dollars per violation on any nurse who violates this part 1 or any rule adopted pursuant to this part 1. The board shall adopt rules establishing a fine structure and the circumstances under which fines may be imposed.    In determining appropriate disciplinary action, the hearings panel shall first consider sanctions that are necessary to protect the public. Only after the panel has considered such sanctions shall it consider and order requirements designed to rehabilitate the nurse. If discipline other than revocation of a license to practice is imposed, the hearings panel may also order that the nurse be granted probation and allowed to continue to practice during the period of the probation. The hearings panel may also include in any disciplinary order that allows the nurse to continue to practice such conditions as the panel may deem appropriate to assure that the nurse is physically, mentally, and otherwise qualified to practice nursing in accordance with generally accepted standards of practice, including any of the following:   Submission by the respondent to such examinations as the hearings panel may order to determine the respondent's physical or mental condition or the respondent's professional qualifications;    The taking by the respondent of such therapy or courses of training or education as may be needed to correct deficiencies found either in the hearing or by the examinations;    The review or supervision of the respondent's practice of nursing as may be necessary to determine the quality of the respondent's practice of nursing and to correct deficiencies therein; or    The imposition of restrictions upon the nature of the respondent's practice to assure that the respondent does not practice beyond the limits of the respondent's capabilities.       Upon the failure of the respondent to comply with any conditions imposed by the hearings panel pursuant to subsection (4)(c)(IV) of this section, the hearings panel may order revocation or suspension of the respondent's license to practice in this state until the respondent complies with the conditions.    In making any of the orders provided in subsections (4)(c)(IV) and (4)(c)(V) of this section, the hearings panel may take into consideration the respondent's prior disciplinary record. If the hearings panel does take into consideration any prior discipline of the respondent, its findings and recommendations shall so indicate.    In all cases of revocation, suspension, probation, or nonrenewal, the board shall enter in its records the facts of the revocation, suspension, probation, or nonrenewal and of any subsequent action of the board with respect thereto.       The attorney general shall prosecute those charges that have been referred to the office of the attorney general by the inquiry panel pursuant to subsection (3)(c)(V) of this section. The board may direct the attorney general to perfect an appeal.    The two-year waiting period specified in section 12-20-404 (3) applies to any person whose license to practice nursing or any other health-care occupation is revoked by any other legally qualified board.       A majority of the members of the board, three members of the inquiry panel, or three members of the hearings panel shall constitute a quorum. The action of a majority of those present comprising a quorum shall be the action of the board, the inquiry panel, or the hearings panel.    Upon the expiration of any term of suspension, the license shall be reinstated by the board if the board is furnished with evidence that the nurse has complied with all terms of the suspension. If the evidence shows the nurse has not complied with all terms of the suspension, the board may revoke or continue the suspension of the license at a hearing, notice of which and the procedure at which shall be as provided in this section.    In case any nurse is determined to be mentally incompetent or insane by a court of competent jurisdiction and a court enters, pursuant to part 3 or 4 of article 14 of title 15 or section 27-65-109 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the nurse is incapable of continuing the practice of nursing, the nurse's license shall automatically be suspended by the board, and, notwithstanding any provision of this part 1 to the contrary, the suspension shall continue until the nurse is found by the court to be competent to continue the practice of nursing.      If the board has reasonable cause to believe that a nurse is unable to practice nursing with reasonable skill and safety to patients because of a condition described in section 12-255-120 (1)(i) or (1)(j) or section 12-295-111 (1)(i) or (1)(j), it may require the nurse to submit to mental or physical examinations by a physician or other licensed health-care professional designated by the board. If a nurse fails to submit to the mental or physical examinations, the board may suspend the nurse's license until the required examinations are conducted.    Every nurse shall be deemed, by so practicing or by applying for renewal registration of the nurse's license, to have consented to submit to mental or physical examinations when directed in writing by the board. Further, the nurse shall be deemed to have waived all objections to the admissibility of the examining physician's or other licensed health-care professional's testimony or examination reports on the ground of privileged communication. Subject to applicable federal law, the nurse shall be deemed to have waived all objections to the production of medical records to the board from health- care providers that may be necessary for the evaluations described in subsection (8)(a) of this section. Nothing in this section shall prevent the nurse from submitting to the board testimony or examination reports of a physician or other licensed health-care professional designated by the nurse to a condition described in subsection (8)(a) of this section that may be considered by the board in conjunction with, but not in lieu of, testimony and examination reports of the physician or licensed health-care professional designated by the board.    The results of any mental or physical examination ordered by the board shall not be used as evidence in any proceeding other than before the board and shall not be deemed a public record nor made available to the public.    The board may require that a nurse submit medical records for review in conjunction with an examination made pursuant to subsection (8)(a) of this section; except that the records shall remain confidential and shall be reviewed by the board only to the extent necessary to conduct an investigation.         Investigations, examinations, hearings, meetings, or any other proceedings of the board conducted pursuant to the provisions of this section shall be exempt from the open meetings provisions of the “Colorado Sunshine Act of 1972”, part 4 of article 6 of title 24, requiring that proceedings of the board be conducted publicly, and the open records provisions of article 72 of title 24, requiring that the minutes or records of the board with respect to action of the board taken pursuant to the provisions of this section be open to public inspection.    Notwithstanding the exemptions in subsection (9)(a) of this section, records of disciplinary action taken by the board pursuant to this section shall be open to public inspection pursuant to the open records provisions of article 72 of title 24.       A physician or other licensed health-care professional who, at the request of the board, examines a nurse shall be immune from suit for damages by the nurse examined if the examining physician or examining licensed health-care professional conducted the examination and made findings or a diagnosis in good faith.    All actions taken and decisions rendered by the board prior to July 1, 1999, are hereby ratified.    Final board action may be judicially reviewed in accordance with section 12-20-408. Judicial proceedings for the enforcement of a board order may be instituted in accordance with section 24-4-106.    Upon certification of the custodian that copies of records subpoenaed pursuant to section 12-20-403 (2) are true and complete except for the patient's name, the copies shall be deemed authentic, subject to the right to inspect the originals for the limited purpose of ascertaining the accuracy of the copies. No privilege of confidentiality shall exist with respect to the copies, and no liability shall lie against the board or the custodian or the custodian's authorized employee for furnishing or using the copies in accordance with this subsection (13).    The board may issue cease-and-desist orders under the circumstances and in accordance with the procedures specified in section 12-20-405.     History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 1338, § 1, effective October 1; (3)(c)(IV) amended,(SB 19-154), ch. 169, p. 1978, § 19, effective October 1. L. 2020: (4)(c)(III) and (7) amended,(HB 20-1183), ch. 157, p. 682, § 18, effective July 1.    Editor's note:    This section is similar to former § 12-38-116.5 as it existed prior to 2019.    Before its relocation in 2019, this section was amended in SB 19-154. 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 July 1, 2019, to October 1, 2019, see SB 19-154, chapter 169, Session Laws of Colorado 2019.     ANNOTATION   Law reviews. For article, “Administrative Subpoenas Under CRS Title 12: Defensing Potential Abuse”, see 22 Colo. Law. 723 (1993).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Procedural due process requires that nurse who signed a stipulation agreeing to six-month licensure suspension be provided with notice that the stipulation had been accepted and an order of suspension entered prior to being charged with violating the provisions of the stipulation agreement. Colo. State Bd. of Nursing v. Lang, 842 P.2d 1383 (Colo. App. 1992).   If due process is to obtain, as it should in these hearings, then obviously it is violated if members of a board are permitted to vote in a revocation matter when they have not attended the hearing, and the respondent thus is denied the right of a full and fair hearing on the charges presented. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   Such hearings, involving a valued right of a respondent, cannot be conducted on a correspondence school pattern. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   The board has the power to determine what constitutes gross incompetency, dishonesty, intemperance, immorality, unprofessional conduct, or any habit rendering a nurse unfit as defined by the statute. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   If such board abuses that power the court, on certiorari, will reverse its judgment and it is proper for the court to determine whether the evidence shows if respondent is guilty of any of the statutory grounds for revocation. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   Under the strict rule concerning certiorari, the supreme court is permitted to determine whether or not the board abused its discretion. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   Such determination cannot be made without considering the testimony and the facts before the board, together with the charges made. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   Certiorari does not mean that the courts, after reviewing the entire record, must permit boards to deprive people of valuable rights arbitrarily and without due process of law. Colo. State Bd. of Nurse Exam'rs v. Hohu, 129 Colo. 195 , 268 P.2d 401 (1954).   This section does not authorize the nursing board to subpoena records of medical and psychiatric treatment received by a licensee, it only authorizes the subpoena of records which pertain to the professional conduct of such licensee. Colo. Bd. of Nursing v. Bethesda Hosp., 809 P.2d 1051 (Colo. App. 1990).