Asserts Attorney Client Privilege

The Foundation for Vertebral Subluxation submitted an Open Records Request to the state board of chiropractic in Colorado requesting several specific documents mentioned in the minutes of the Rulemaking Hearing on injectable drugs.

Click here to read related story.

Those requested documents included:

• Confidential Memorandum from the Attorney General’s Office
• Missouri injectable memo August 22, 2012
• Medical Board memo to Board
• Colorado Medical Society letters to Board
• Minutes of the 11/15/12 Board meeting
• Any and all other communications, emails, letters, correspondence, faxes,
  memos etc between or to the board and its members regarding this issue.  

In response to the request the board provided a number of documents but asserted that the Confidential Memorandum from the Attorney General’s Office was not subject to the Open Records act claiming attorney-client privilege.

The Foundation sent a follow-up letter requesting the following:

1. Who holds the privilege? Board members? Board staff?
2. Under what specific law is the material not subject to public disclosure?
3. Who made the determination that the memo may not be released to the public?
4. How may this decision be appealed?

The Colorado Board responded with the following letter – click here to read

The bottom line is that, for whatever reason, the Colorado Board of Chiropractic does not want anyone to see the letter the Attorney General wrote to the Board on the issue of injectable drugs.  

On November 15, 2012 the Colorado Board of Chiropractic Passed Rule 7 C allowing for the administration and injection of legend drugs.

That Rule then went on to the Attorney General of the State of Colorado who opined on December 5, 2012 that the rule exceeded the legislative scope of authority of the chiropractic board.

Following this decision Terrence Carroll, the Colorado Chiropractic Association’s Regulatory/Legal Counsel, issued this statement:

The Attorney General’s opinion is non-binding. Pursuant to CRS 24-4-103(5), the new rules become effective 20 days after publication of the rules as finally adopted. The new injectable rules will become effective on January 14, 2013.

The Attorney General’s opinion on the rule will be considered by the Office of Legislative Legal Service (OLLS) when they begin the rule review process for 2014. However, OLLS and the AG’s office regularly disagree about whether a rule exceeds the authority of the agency that promulgated the rule.

Once this rule become effective, it will remain in effect until and if the rule expires at 11:59pm on May 15, 2014 because the legislature fails to pass the rule review bill or the legislature fails to include the rule in the 2014 rule review bill.

In short, beginning on January 14, the injectable rule is a legally binding rule of the Board of Chiropractic Examiners.

Terrance

Terrance D. Carroll
Attorney at Law
Greenberg Traurig, LLP | 1200 17th Street, Suite 2400 | Denver, Colorado 80202
Tel 303.572.6531 | Fax 720.904.7631 | Skype: tdcarrolllaw
Thursday at 3:27pm

The Colorado Chiropractic Association is a strong proponent of the injectable drug rule.