From last week’s oral arguments, the Colorado Supreme Court may decide whether the whole Colorado Department of Public Health and Environment is a “state public body” subject to the Open Meetings Law. The Court of Appeals previously said it’s not. While one side believes the agency should fall in the law’s purview, the attorneys aren’t arguing everything the agency does should be subject to the Open Meetings Law. The two sides are disputing whether the process for a specific policy the CDPHE adopted should have been made public.
A group of three cases has asked the court three questions in total: Is the CDPHE a “state public body” subject to the Open Meetings Law? Is the CDPHE’s referral of a physician to the Colorado Medical Board for potential investigation a “final agency action” subject to judicial review under the Administrative Procedure Act? And can an agency’s subpoena have a lawful purpose, even if the complaint from a different agency that prompted its investigation was made under a referral policy that violated the Open Meetings Law or the Administrative Procedure Act?
Overlaying all three cases is a policy the CDPHE implemented in order to have criteria for referring physicians to the Colorado Medical Board for investigation, prompted by a group of physicians who seemed to have unusually high rates of certifying patients for medical marijuana. The policy stated the CDPHE would refer physicians to the Colorado Medical Board for investigation if they:
- made 3,521 or more recommendations for medical marijuana per year;
- made recommendations for an increased marijuana plant or ounce count for more than 30% of their patients or a particularly high recommendation for any individual patient; or
- have a caseload in which over one-third of patients were under 30.
The CDPHE adopted the policy, which it called Policy 2014-01, in May 2014 and made it public in April 2015. The department didn’t hold any public meetings before adopting it.
To read the rest of this story and other complete articles featured in the Sept. 23, 2019 print edition of Law Week Colorado, copies are available for purchase online.