Bd of Nursing v. Fresques

20CA0962 Bd of Nursing v Fresques 01-06-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0962

Colorado State Board of Nursing No. NB 2019-0023

Colorado Board of Nursing,

Petitioner-Appellee,

v.

Donald J. Fresques, R.N., A.P.N.,

Respondent-Appellant.

ORDER REVERSED

Division VII

Opinion by JUDGE PAWAR

Navarro and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 6, 2022

Philip J. Weiser, Attorney General, Keenan E. Lorenz, Senior Assistant Attorney

General, Denver, Colorado, for Petitioner-Appellee

Spencer Fane LLP, Ellen Elizabeth Stewart, Troy R. Rackham, Denver,

Colorado, for Respondent-Appellant

1

¶ 1 Respondent, Donald. J. Fresques, appeals the ruling of the

Colorado Board of Nursing (Board) that his prescriptive license is

and always has been limited to pediatrics. We conclude that

Fresques did not receive adequate notice of the grounds on which

the Board limited his prescriptive license. We therefore conclude

that Fresques was deprived of procedural due process and reverse

the portion of the Board’s order limiting his prescriptive license.

The remaining portion of the Board’s order is not before us and is

therefore unaffected by this opinion.

I. Background

¶ 2 A nurse practitioner is one type of advanced practice nurse

(APN). § 12-255-111(2), C.R.S. 2021. A registered nurse can

become licensed as an APN if the nurse meets certain additional

training and experience requirements. Id. Once registered as an

APN, the nurse may then apply for a license to prescribe

medication. § 12-255-112(1), C.R.S. 2021. The requirements for

obtaining prescriptive authority are in addition to those required for

APN registration and are found in a separate statute. Id.

¶ 3 Fresques obtained his APN license in 1999 and his

prescriptive authority in 2000. Since then, the requirements for

2

obtaining those credentials have changed. Under the new

regulatory scheme, both the APN license statute and the

prescriptive authority statute contain exemption clauses that allow

nurses who obtained their credentials when Fresques did to retain

them without fully complying with the updated requirements. § 12-

38-111.5(4), C.R.S. 2018 (APN license exemption clause); § 12-38-

111.6(4.5)(c), C.R.S. 2018 (prescriptive authority exemption

clause).

1

At issue in this case is the scope of Fresques’ APN license

and prescriptive authority under those exemption clauses.

¶ 4 At the time Fresques obtained his APN license and prescriptive

authority, he was practicing in pediatrics. In the twenty years since

then, he has practiced in orthopedics, family medicine, and urgent

care. In 2010, he started his current job working at a private

multidisciplinary practice where he specializes in adult pain

management.

¶ 5 In 2019, an inquiry panel of the Board (the panel) decided that

Fresques was practicing outside the scope of his APN license. The

1

The “new regulatory scheme” refers to the 2018 statutes and

regulations applicable here. We recognize that the statutes and

regulations have been amended since then, but those amendments

are inapplicable to this case.

3

panel issued a cease and desist order stating that Fresques must

stop providing APN care to adults. The order alleged that under

section 12-38-111.5, C.R.S. 2018, the APN license statute in effect

at the time, Fresques’ APN license was limited to pediatrics and he

was therefore not allowed to provide APN care to non-pediatric

patients. The record contains no indication that Fresques has ever

provided substandard care — in fact, the record is replete with

evidence that Fresques has always practiced in exemplary fashion.

¶ 6 Later in 2019, the panel filed a notice of charges (effectively a

charging document) in the Office of Administrative Courts. The

notice contained a single count, which alleged that Fresques’ APN

license was limited to pediatrics and therefore did not authorize him

to treat adults. The panel brought the single count under section

12-38-111.5, C.R.S. 2018, the APN license statute, and did not

allege a violation of section 12-38-111.6, C.R.S. 2018, the

prescriptive authority statute.

¶ 7 Fresques answered the panel’s single count, and he and the

panel each filed motions for summary judgment. A hearing was

held shortly after the parties moved for summary judgment, but the

administrative law judge (ALJ) cut it short when it became clear

4

that the facts were undisputed and the only disagreement between

the parties was a pure question of law: was Fresques’ APN license

limited to pediatrics. Indeed, when it cut off the hearing, the ALJ

ordered the parties to submit written arguments “concerning the

legislative history of section 12-38-111.5,” the APN license statute.

At no point did the panel argue that even if Fresques’ APN license

was not limited to pediatrics under section 12-38-111.5, his

prescriptive authority was so limited under section 12-38-111.6.

And the ALJ did not request briefing on that question.

¶ 8 The ALJ decided the case on summary judgment. She ruled in

favor of Fresques on the single count alleged in the notice of

charges: Fresques’ APN license was not limited to pediatrics when

he obtained it in 1999 and the new APN license statute’s exemption

clause allowed him to retain that broad license and continue to

provide APN care to adults. However, the ALJ ruled against

Fresques on a count not specifically alleged in the notice of charges.

The ALJ held that Fresques’ prescriptive authority was limited to

pediatrics when he obtained it under section 12-38-111.6, C.R.S.

1999. According to the ALJ, although the new prescriptive

authority statute’s exemption clause allowed Fresques to retain his

5

prescriptive authority, that authority had only ever applied to

pediatrics and that limitation did not change. Based on this

analysis, the ALJ affirmed the panel’s cease and desist order with

the modification that it applied only to his prescriptive authority,

not his APN license. In effect, the ALJ affirmed a new cease and

desist order stating that Fresques can practice as an APN outside of

pediatrics but can prescribe only within pediatrics.

¶ 9 Fresques and the panel each filed exceptions to the ALJ’s

ruling. Fresques argued that (1) any challenge to his prescriptive

authority based on the prescriptive authority statute was not

properly raised and (2) the ALJ erred by holding that his

prescriptive authority was limited to pediatrics. The panel argued

that the ALJ erred by holding that Fresques was allowed to practice

as an APN outside of pediatrics. The Board adopted the ALJ’s

ruling as a final agency order without any modifications or

additional substantive explanation.

¶ 10 Only Fresques appeals. He urges us to reverse the Board’s

order for two reasons: (1) he did not receive notice of the added

count ultimately affirmed by the Board and was therefore deprived

of procedural due process; and (2) the Board incorrectly interpreted

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the applicable law in limiting his prescriptive authority to

pediatrics. We agree with Fresques’ first argument and therefore

reverse without addressing the second.

II. Fresques was Deprived of Procedural Due Process

¶ 11 Fresques argues that he was deprived of procedural due

process because he was given notice only that the Board sought to

limit his APN license under section 12-38-111.5, C.R.S. 2018 — he

was not given notice that the Board also sought to limit his

prescriptive authority under section 12-38-111.6, C.R.S. 2018. We

review this argument de novo, see Klingsheim v. Cordell, 2016 CO

18, ¶ 14, and agree with Fresques.

A. Procedural Due Process and Notice

¶ 12 “The essence of procedural due process is fundamental

fairness,” a component of which is “advance notice and an

opportunity to be heard prior to state action resulting in deprivation

of a significant property interest.” Colo. State Bd. of Nursing v.

Lang, 842 P.2d 1383, 1386 (Colo. App. 1992).

¶ 13 The General Assembly has made clear exactly what kind of

advance notice is required in a proceeding like this one. Section

12-38-116.5(15)(a), C.R.S. 2018, requires that cease and desist

7

orders like the one here “set forth the statutes and rules alleged to

have been violated [and] the facts alleged to have constituted the

violation.” Additionally, any hearing held on allegations in a cease

and desist order must comport with sections 24-4-104 and -105,

C.R.S. 2021. And section 24-4-104(3)(a) provides that an agency

may not revoke, suspend, annul, limit, or modify a license “unless,

before institution of agency proceedings therefor, the agency has

given the licensee notice in writing of objective facts or conduct . . .

that may warrant such action and afforded the licensee opportunity

to submit written data, views, and arguments with respect to the

facts or conduct.”

B. No Notice at the Pleading Stage

¶ 14 The cease and desist order Fresques received from the panel

contained no mention of section 12-38-111.6 or prescriptive

authority. Instead, it focused exclusively on whether Fresques’ APN

license extended beyond pediatrics under section 12-38-111.5. And

it ordered him to stop “providing advanced practice care and

treatment to patients outside of the pediatric population focus . . .

until such time that Respondent is listed on the advanced practice

registry with a population focus that allows treatment of patients

8

outside of the pediatric population focus.” The order provided no

notice of the count the Board ultimately affirmed: that Fresques’

prescriptive practice was outside the scope of that authorized by

section 12-38-111.6. As to this count, the cease and desist order

clearly violated section 12-38-116.5(15)(a)’s notice requirements.

¶ 15 The panel’s notice of charges was similar. The single charge

was “Unauthorized Practice of Advanced Practice Nursing.” There

was no charge specific to Fresques’ prescriptive authority. The

notice of charges contained an entire section spanning six pages

reproducing all the “relevant provisions” of Colorado statute and

regulation in their entirety. Section 12-38-111.5 and numerous

other provisions relevant to obtaining an APN license were included.

Section 12-38-111.6 and its associated regulations were not. Nor

was any other provision related to the requirements for obtaining

prescriptive authority.

¶ 16 The only two references to prescriptive authority in the notice

of charges were in passing. First, the relevant provisions included

section 12-38-103(8.5)(b), C.R.S. 2018, which provided that

“‘[p]ractice of advanced practice nursing’ includes prescribing

9

medications as may be authorized pursuant to section 12-38-

111.6.”

¶ 17 Second, the factual allegations merely repeated this definition.

They went on to state that Fresques obtained his APN license in

1999 and recounted the nature of his practice since that time,

which included providing APN care to adults. Significantly, the

factual allegations did not mention when or if Fresques obtained

prescriptive authority, nor did they allege that Fresques had been

prescribing medication to any patients, pediatric or otherwise.

C. No Notice During Litigation Before the ALJ

¶ 18 When the parties filed their simultaneous motions for

summary judgment, Fresques made clear that, as he understood it,

his prescriptive authority was not being independently challenged.

In his motion for summary judgment, he wrote: “There is no claim

in this case that Respondent did not adhere to the requirements for

prescriptive authority under C.R.S. § 12-38-111.6.”

¶ 19 The first time section 12-38-111.6 and prescriptive authority

surfaced in any substantive manner was in the panel’s summary

judgment motion. But even then, the panel raised prescriptive

authority only to support its APN license argument. The panel’s

10

argument on summary judgment was that section 12-38-111.5 has

always limited the scope of an APN’s practice to the population they

served at the time they successfully applied for the license. The

panel supported this interpretation of the APN license statute by

arguing that the prescriptive authority statute contained a similar

and independent limitation. At no point in its summary judgment

filings did the panel argue that even if Fresques’ APN license

allowed him to care for adults, his prescriptive authority was

nevertheless limited to pediatrics.

¶ 20 At the hearing, the ALJ further indicated that the only relevant

issue was the scope of Fresques’ APN license, not the scope of his

prescriptive authority. As mentioned above, when she abandoned

the hearing, the ALJ ordered the parties to submit written briefs on

a single legal issue: the legislative history of section 12-38-111.5

and whether, based on that history, Fresques’ APN license was

limited to pediatrics.

¶ 21 After receiving the parties’ briefs and considering them with

the summary judgment filings, the ALJ ruled that Fresques’ APN

license was not limited to pediatrics under section 12-38-111.5.

But the ALJ did not stop there. Instead, she sua sponte conducted

11

a comprehensive analysis of section 12-38-111.6 to conclude that

even though Fresques’ APN license was not limited to pediatrics, his

prescriptive authority was.

¶ 22 In sum, before the ALJ issued her ruling, neither the panel nor

the ALJ indicated that Fresques’ prescriptive authority might be

limited under section 12-38-111.6, independent of any limitation to

his APN license under section 12-38-111.5.

2

The cease and desist

order and the notice of charges did not notify Fresques of this

possibility. Nor did any argument presented to the ALJ. This

violated section 12-38-116.5(15)(a), section 24-4-104(3)(a), and

Fresques’ right to procedural due process.

D. The Board’s Arguments to the Contrary are Unpersuasive

¶ 23 Initially, we recognize that had Fresques’ APN license been

limited to pediatrics, his prescriptive authority would have also

been limited to pediatrics. After all, prescriptive authority is a

component of practicing as an APN. But that would have limited

Fresques’ prescriptive authority based on the application of section

12-38-111.5 and the APN license rules. At no point prior to the

2

The Board conceded this point during oral arguments.

12

ALJ’s ruling was Fresques notified that his prescriptive authority

was being independently challenged under section 12-38-111.6.

And section 12-38-116.5(15)(a) explicitly requires that a respondent

receive notice of “the statutes and rules alleged to have been

violated.”

¶ 24 We are unpersuaded by the Board’s additional arguments that

any lack of notice does not require reversal. First, the Board argues

that whether Fresques’ prescriptive authority was limited by section

12-38-111.6 was tried by implied consent. The Board points to the

fact that Fresques failed to object to witness testimony and other

evidence related to prescriptive authority and section 12-38-111.6.

True, the summary judgment evidence included Fresques’

application for prescriptive authority and the letter granting him the

same. And the panel’s medical expert testified about the rules for

obtaining prescriptive authority. But the ALJ ultimately abandoned

the hearing because she determined that such evidence was

irrelevant to the sole and purely legal issue before her: was

Fresques’ APN license limited to pediatrics under section 12-38-

111.5. We therefore cannot say that Fresques impliedly consented

13

to litigating the scope of his prescriptive authority independently

from the scope of his APN license.

¶ 25 Second, the Board argues that any lack of notice was harmless

because it “did not diminish Mr. Fresques’ opportunity to challenge

the [panel’s cease and desist order].” The record belies this

argument. Fresques certainly had a fair opportunity to challenge

the original cease and desist order he received from the panel — the

order that focused exclusively on limiting his APN license under

section 12-38-111.5. But the cease and desist order as modified by

the ALJ was completely different. Rather than limiting his APN

license under section 12-38-111.5, it limited his prescriptive

authority under section 12-38-111.6. Before the ALJ, Fresques had

no opportunity to challenge the grounds of the order as modified by

the ALJ.

¶ 26 Third, the Board argues that procedural due process and

section 24-4-104(3)’s requirement of notice and process are

inapplicable here because neither the panel nor the Board ever

sought to revoke, suspend, annul, limit, or modify his prescriptive

authority. Instead, according to the Board, it only sought to stop

Fresques from exceeding the scope of his prescriptive authority,

14

which has always been limited to pediatrics. We disagree because

this characterization of the Board’s actions assumes that it and the

ALJ correctly interpreted section 12-38-111.6. And the notice

requirements applicable at the outset of a proceeding cannot hinge

on how a court ultimately resolves that proceeding.

¶ 27 To further explain: the exemption clause of section 12-38-

111.6 allowed Fresques to retain the prescriptive authority he

obtained in 1999 if he met certain requirements not at issue here.

§ 12-38-111.6(4.5)(c), C.R.S. 2018. But what was the scope of

Fresques’ 1999 prescriptive authority that he would be retaining?

The prescriptive authority statute in effect in 1999 limited

prescriptive authority to patients “appropriate” to an APN’s “scope

of practice.” § 12-38-111.6(8)(a), (c), C.R.S. 1999. The regulations

at the time limited prescriptive authority to patients “within” an

APN’s “area of practice.” Div. of Pros. & Occupations Ch. XV, Reg.

IV(A), 3 Code Colo. Regs. 716-1 (1999). Neither “scope of practice”

nor “area of practice” was defined in the statutes or regulations.

¶ 28 The ALJ and Board held that “scope of practice” and “area of

practice” referred to the patient population that the APN treated at

the time (for Fresques in 1999, pediatrics). Under this

15

interpretation, the modified cease and desist order could be seen as

merely forcing Fresques to practice within the confines of his

prescriptive license, which has never changed.

¶ 29 But what if a reviewing court disagrees with the ALJ and

Board’s interpretation? Suppose a reviewing court held that “scope

of practice” and “area of practice” for an APN referred not to the

patient population they care for, but rather the scope of duties of a

particular APN (i.e., the scope of duties of a Nurse Practitioner,

Certified Nurse Midwife, etc.). Or, alternatively, suppose a

reviewing court agreed that those terms referred to a particular

patient population, but that when an APN’s practice changes, like

Fresques’ did in compliance with his license, the contours of his

prescriptive authority automatically change with it. In either of

these circumstances, the panel’s cease and desist order as modified

by the ALJ would have sought to narrow or modify the scope of

Fresques’ prescriptive license, thus rendering section 24-4-104(3)

applicable. In short, we do not see how the applicability of certain

notice requirements at the initial stage of a proceeding can hinge on

16

the ultimate outcome at the end of the proceeding.

3

We therefore

reject the Board’s argument that section 24-4-104(3) does not

apply.

¶ 30 Finally, the Board argues that any defect in notice or

procedural due process was harmless because the facts are

undisputed and the substantive question before us is purely legal.

As the Board puts it, “[b]oth parties agree that Mr. Fresques was

prescribing medication to adults while working as an APN” and

therefore, even if Fresques had received proper notice, the result

before the ALJ and Board would have been the same. We are not so

sure.

¶ 31 As explained above, “scope of practice” and “area of practice”

are not defined in the regulatory scheme and, since the ALJ’s

ruling, it has become clear that the parties disagree about their

meaning. At oral argument, Fresques argued persuasively that had

3

To further illustrate this point, take the panel’s original cease and

desist order alleging that Fresques’ APN license was limited to

pediatrics. When it was issued, it seemed to merely force Fresques

to practice within the confines of his license, which confines had

never changed. But viewed in light of the ALJ and Board’s ultimate

conclusion that Fresques’ APN license was not limited to pediatrics,

the panel’s original cease and desist order most certainly sought to

limit or modify the license.

17

he known his prescriptive authority was being independently

challenged before the ALJ, he would have presented evidence that

his education and training in prescribing medications was not

solely limited to pediatrics. This evidence, according to Fresques,

would have supported his argument that in 1999, use of the terms

“scope of practice” and “area of practice” did not evince a legislative

intent to limit prescriptive authority to an APN’s population focus.

The lack of notice meant that Fresques had little incentive to

present this evidence or argument. Indeed, the ALJ granted

summary judgment based on her interpretation of section 12-38-

111.6 without any relevant argument or evidence. And the Board

simply adopted the ALJ’s ruling. The ALJ’s ruling may have been

different had she received arguments from both sides on this issue.

This possibility is why the principle of party presentation is central

to our entire justice system. See Greenlaw v. United States, 554

U.S. 237, 243-44 (2008); Galvan v. People, 2020 CO 82, ¶ 45.

¶ 32 We therefore conclude that Fresques’ right to procedural due

process was violated because he did not receive proper notice at any

time before the ALJ issued her ruling that the Board sought to limit

his prescriptive authority independently from any limit on his APN

18

license. Based on this conclusion, we reverse the portion of the

Board’s order providing that Fresques’ prescriptive authority is

limited to pediatrics.

III. Conclusion

¶ 33 The portion of the Board’s order limiting Fresques’ prescriptive

authority to pediatrics is reversed. This opinion does not prevent

the Board or panel from issuing a new cease and desist order

challenging Fresques’ prescriptive authority under section 12-38-

111.6.

JUDGE NAVARRO and JUDGE GROVE concur.