When state officials decided this summer to yank a contract for a peer health agency that has counseled Colorado physicians for 30 years, there was uproar in the medical community.
Hundreds of letters in protest — from doctors, medical students and others — bombarded the governor’s office and the state Department of Regulatory Agencies. How, the letters’ authors demanded, could the state agency boot the long-time provider and choose a new one without consulting the Colorado Medical Board, which for decades has worked with the peer health group.
Turns out, it couldn’t, according to a ruling Tuesday from an administrative law judge.
The ruling from the state Office of Administrative Courts says the Colorado Department of Regulatory Agencies “does not have the legal authority” to select the provider and that DORA’s actions amount to a “material violation” of the state’s procurement code. The statute is clear: only the state medical board is authorized to choose the peer health group that provides counseling, evaluations and other support to struggling physicians across the state.
The ruling said DORA’s selection of a new provider — an agency that provides peer counseling to nurses — is void.
The abrupt contract switch this summer took the Colorado Physician Health Program by surprise. The agency, which formed in 1986, has evaluated more than 5,600 doctors for issues ranging from suicidal thoughts after the death of a patient, to alcohol abuse, to physical health conditions that might affect their ability to continue seeing patients.
Most physicians seek the help voluntarily, though about one-quarter are ordered by the state medical board to undergo evaluation.
But in June, the state Department of Regulatory Agencies ended the contract with the health program and instead selected Peer Assistance Services, which monitors nurses who need evaluation or counseling.
The state medical board did not know about the change until it was done.
Peer Assistance Services was scheduled to take over the contract on Nov. 1, but that has been pushed to February to accommodate the appeals process.
It could go on for many more months. DORA now has the option to appeal the ruling from the administrative law judge, meaning the case could end up in a higher court. Or the state agency could start over from the beginning, this time involving the state medical board.
The Colorado Physician Health Program appealed the contract decision in July, triggering a September hearing at the state procurement office in the Department of Personnel and Administration. The hearing was not publicly posted and the media was not allowed to attend. Then, before the procurement officer who presided over that hearing announced a decision, DPA Executive Director Kara Veitch punted the appeal over to the state Office of Administrative Courts, another division of DPA.
In an October hearing, lawyers for the Physician Health Program battled DORA, represented by the state Attorney General’s Office.
Tuesday’s court ruling was not announced publicly and was obtained by The Colorado Sun through a source who was not part of the appeal process. In fact, a DORA spokeswoman said Tuesday evening that there was “nothing new at this point” in response to a Sun inquiry about the status of the case.
Both DORA and the DPA were closed on Wednesday because of Veterans Day and did not provide further information.
The ruling was based solely on whether DORA had the authority to circumvent the medical board. But doctors upset about the contract switch have raised other concerns.
They worry that struggling physicians would avoid seeking evaluation and counseling if they did not have a true “peer” health program. The new contract was awarded to an agency that specializes in nurses and did not, at least at the time it applied for the job, have physicians or psychiatrists on staff.
Also, some fear that doctors would no longer have confidentiality under the new contract. The agreement says doctors must sign a release of information to the state medical board even when they seek help voluntarily. The current contract says doctors who go to the Physician Health Program on their own accord will not be reported to the medical board, unless there is serious risk of harm to a patient.
Through the Colorado Open Records Act, The Sun received more than 120 pages of letters sent to Gov. Jared Polis and to DORA in protest of the contract switch.
In one letter to the governor, Dr. Claire Zilber, president of the Colorado Psychiatric Society, questioned the motivation behind DORA’s decision. She also warned of dire consequences should the state end its contract with a long-trusted source of support, and noted that 300 physicians in the United States die by suicide each year.
“The current pandemic, which is exerting enormous strain on physicians, is happening on top of a preexisting epidemic of demoralization and burnout,” she wrote. “To remove our trusted source of peer support in the middle of this crisis invites tragedy.”
DORA officials have not responded to requests for interviews about the contract switch, but documents make clear the agency has been in conflict with the Physician Health Program since 2018, when the program was the sole bidder for the state contract.
The state agency called the health program “nonresponsive” because it did not comply with a requirement that “all client records would become the state’s property,” according to a letter to DORA from the health program’s attorney.