Recap of Cba Convention Cle Program: Unresolved Issues in Administrative Law

Publication year1994
CitationVol. 23 No. 11 Pg. 2517
23 Colo.Law. 2517
Colorado Lawyer

1994, November, Pg. 2517. Recap of CBA Convention CLE Program: Unresolved Issues in Administrative Law


Vol. 23, No. 11, Pg. 2517

Recap of CBA Convention CLE Program: "Unresolved Issues in Administrative Law"

compiled by Kathleen M. Butler

Two days after the Administrative Law Committee presentation at the CBA Convention, an interesting decision was announced by the Colorado Supreme Court (en bane,) involving administrative law issues. The case, State Board of Medical Examiners v. Brian C. McCroskey, M.D. [No. 93SC471, Sept. 12, 1994], involves the often-debated issue of an ultimate conclusion of fact versus an evidentiary fact. It also overrules a previous case in the much-used defense of the "respectable minority test." [The case was defended by Robert Spencer, one of the speakers at the Administrative Law Committee presentation discussed in this article.]

At the CBA Convention on September 10, 1994, the CBA Administrative Law Committee sponsored a program entitled "More or Less Unresolved Issues in State Administrative Hearings." The audience consisted mainly of administrative law practitioners, on both the civil and governmental side. The speakers were Robert Spencer of the Regulatory Law Section of the Colorado Attorney General's Office; David Burlage of Montgomery, Little and McGrew, P.C.; and Judith Schulman, an administrative law judge ("ALJ") with the central panel at the Division of Administrative Hearings. The moderator was Richard McManus, Jr., a sole practitioner in Denver.

This article recaps the various topics that were discussed during this program. The opinions expressed herein are those of the presenters at the program.

Licensing Issues

Habitual Intemperance

Robert Spencer started the program with a review of statutory and case law on the issue of habitual intemperance. Most licensing practice acts provide as a basis for discipline the excessive use of alcohol or drugs by a licensed professional. The most intriguing issue presented to practitioners in the licensing cases is whether the alcohol or drug use currently exists at the time the administrative hearing is held. The Colorado Court of Appeals has two varying interpretations that should be reviewed by practitioners in preparation for such a hearing.

In one case, the court held that the plain language of the Colorado Nurse Practice Act(fn1) required the addiction or dependency to be proven to exist at the time of the hearing in order to be the source of a disciplinary action.(fn2) However, in the other case,(fn3) the court held that a different standard applied when analyzing a physician assistant's actions under the Medical Practice Act.(fn4) The court stated:

We are aware of no statutory or other authority requiring that it be a presently existing condition. Here, the Board had a legitimate concern as to whether the previously manifested intemperate condition might recur.(fn5)

In the CLE program, Spencer reconciled the two cases by looking at the different practice acts involved in the decisions. The Nurse Practice Act contained the word "is" in the statute at issue, and the Medical Practice Act had more ambiguous language.

To provide further guidance, Spencer discussed another case from the Court of Appeals, which involved a physician with psychiatric problems.(fn6) The court there held that the Board's concern must be whether the past conduct and disability indicate any present risk to the health, safety and welfare of a patient who may receive treatment.

A query was made as to whether the Americans With Disabilities Act(fn7) precluded discipline based on past alcohol or drug dependence, and the answer was "probably not." Program attendees


were directed by Spencer to a recent article in the Administrative Law Column of The Colorado Lawyer.(fn8)

New APA Default Procedures

In June 1993, the Administrative Procedure Act ("APA") was amended to provide for default procedures when a written answer is not filed within thirty days after the service or mailing of a notice of right to administrative hearing. Spencer noted that CRS § 24-4-105(2)(b), pertaining to hearings and determinations, states:


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