Adolescent & Family Inst. of Colo., Inc. v. Colo. Dep't of Human Servs.

• Decision Date: 28 March 2013
• Docket Number: Court of Appeals No. 11CA2586
• Citation: 316 P.3d 4
• Parties: ADOLESCENT AND FAMILY INSTITUTE OF COLORADO, INC., a Colorado corporation, Plaintiff–Appellant and Cross–Appellee, v. COLORADO DEPARTMENT OF HUMAN SERVICES, DIVISION OF BEHAVIORAL HEALTH, f/k/a Alcohol and Drug Abuse Division, Defendant–Appellee and Cross–Appellant.
• Court: Colorado Court of Appeals

316 P.3d 4

ADOLESCENT AND FAMILY INSTITUTE OF COLORADO, INC., a Colorado corporation, Plaintiff–Appellant and Cross–Appellee,

v.COLORADO DEPARTMENT OF HUMAN SERVICES, DIVISION OF BEHAVIORAL HEALTH, f/k/a Alcohol and Drug Abuse Division, Defendant–Appellee and Cross–Appellant.

Court of Appeals No. 11CA2586

Colorado Court of Appeals,

Div. II.

Announced March 28, 2013

City and County of Denver District Court No. 09CV7898, Honorable Sheila A. Rappaport, Judge.

Miller & Law, P.C., Curtis R. Henry, Katherine G. Fritz, Littleton, Colorado, for Plaintiff–Appellant and Cross–Appellee.

John W. Suthers, Attorney General, Alicia R. Calderón, First Assistant Attorney General, Betty J. Wytias, Assistant Attorney General, Denver, Colorado, for Defendant–Appellee and Cross–Appellant.

Opinion by CHIEF JUDGE DAVIDSON

¶ 1 Plaintiff, Adolescent and Family Institute of Colorado, Inc., appeals from the district court's declaratory judgment in favor of defendant, Colorado Department of Human Services, Division of Behavioral Health, Alcohol and Drug Abuse Division (ADAD). The court determined that defendant's regulation, which required plaintiff to submit confidential patient information to defendant, did not violate state or federal confidentiality statutes as applied to plaintiff. It further determined that defendant was required to finalize a policy for retention and destruction of that information.

¶ 2 Defendant cross-appeals from the district court's postjudgment stay pending appeal enjoining defendant from taking any licensure action against plaintiff.

¶ 3 We affirm the judgment and vacate the stay.

I. Background

¶ 4 The Colorado Department of Human Services (DHS) is “responsible for the administration of human services programs” in the state, § 26–1–105(3), C.R.S.2012, including alcohol and drug abuse treatment programs, see§§ 26–1–111(5), 26–1–201(1)(a)-(c), C.R.S.2012. See§§ 27–80–101(6), 27–80–102(2), C.R.S.2012.

¶ 5 Defendant is a division within DHS and is responsible for formulating and administering a comprehensive state plan for alcohol and drug abuse programs. See§ 26–1–105(1.5), C.R.S.2012; see also§ 27–80–102, C.R.S.2012. To do so, defendant is authorized to “establish standards for approved treatment facilities that receive public funds or that dispense controlled substances or both.” § 27–82–103(1), C.R.S.2012; see§ 27–81–106(1), C.R.S.2012; see also§ 27–80–108(1), C.R.S.2012. A facility that falls into that category must be approved, meaning licensed, by defendant to operate in Colorado. See§ 27–82–103(6), C.R.S.2012.

¶ 6 Thus, defendant also is authorized “to establish minimum rules by which it licenses and monitors the administration and provision of treatment services for substance use disorders,” ADAD Admin. Procedures, 6 Code Colo. Regs. 1008–1:15.210(A); see§§ 27–80–204 to –207, C.R.S.2012, and may deny, revoke, or suspend a license based on a program's failure to comply with those standards, see§§ 27–80–208, 27–81–106(4)–(6), 27–82–103(5), C.R.S.2012; ADAD License Revocation, Denial, Suspension, Limitation, Annulment or Modification, 6 Code Colo. Regs. 1008–1:15.212(A).

¶ 7 Defendant is responsible for reviewing each program's request for public funds and all applications for federal grants. See§ 27–80–109, C.R.S.2012.

¶ 8 Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. According to the record, plaintiff does not dispense controlled substances and it is unclear whether it receives public funds. See42 C.F.R. § 2.12(b) (describing what is considered federal assistance). However, regardless of whether plaintiff is required to be licensed, it has been licensed by defendant since 1984 and seeks to maintain its licensed status.

¶ 9 All licensees are required to comply with defendant's regulations and standards to maintain their licenses. See§§ 27–80–208(1)(d), 27–81–106(5), 27–82–103(5); ADAD Administrative Procedures, 6 Code Colo. Regs. 1008–1:15.210(B).

¶ 10 The regulation at issue here provides that all licensees are responsible for “[a]ccurate and timely submission of required data to [defendant], including Drug Alcohol Coordinated Data System (DACODS) client treatment admission and discharge records.” ADAD Governance, 6 Code Colo. Regs. 1008–1:15.214(B)(6). The DACODS form contains, inter alia, a patient's first and last name, date of birth, social security number, zip code, and other demographic information such as income and education.

¶ 11 Defendant did not require private treatment facilities to comply with the DACODS submission requirement until 2005. At that time, plaintiff sought a waiver of the requirement because it believed that submitting the DACODS form to defendant violated state and federal laws protecting the confidentiality of patient records.

¶ 12 Defendant denied plaintiff's waiver request. Defendant then initiated administrative license revocation proceedings, which were dismissed with prejudice by an administrative law judge. Plaintiff then initiated proceedings in the district court, seeking, inter alia, a declaratory judgment to determine whether the DACODS submission requirement was preempted by state and federal laws because the regulation and the laws conflicted, “making compliance with both physically impossible,” that is, whether the regulation was unconstitutional as applied to plaintiff.

¶ 13 In its judgment, the court concluded that the DACODS submission requirement was not preempted by state and federal laws because it was not covered by the statutory psychotherapist-patient privilege, and it fell within certain statutory exceptions to the general prohibition against disclosures. In a postjudgment motion, plaintiff asked the court to stay any licensure action by defendant against it pending the appeal. The court granted the stay.

¶ 14 Plaintiff appeals the declaratory judgment, and defendant cross-appeals the stay order.

II. Appeal

A. Psychotherapist–Patient Privilege

¶ 15 Plaintiff first contends that the district court erred by finding that the DACODS submission requirement does not violate section 13–90–107(1)(g), C.R.S.2012, the psychotherapist-patient privilege. We disagree.

¶ 16 “ ‘Generally, privileges are creatures of statute and therefore must be strictly construed.’ ” DeSantis v. Simon, 209 P.3d 1069, 1073 (Colo.2009) (quoting People v. Turner, 109 P.3d 639, 644 (Colo.2005)); seeHartmann v. Nordin, 147 P.3d 43, 49 (Colo.2006) (“Because it withholds potentially relevant information, we narrowly construe the physician-patient privilege.”). We review the district court's interpretation of a statute de novo. SeeTurner, 109 P.3d at 644; W. Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 573 (Colo.App.2006).

¶ 17 In interpreting statutes, our primary goal is to ascertain and give effect to the legislative intent. SeeHartmann, 147 P.3d at 49. We do so by first looking to the plain language of the statute. Id. If the language is clear and unambiguous, we apply it as written. Kauntz v. HCA–Healthone, LLC, 174 P.3d 813, 816 (Colo.App.2007).

¶ 18 As relevant here, section 13–90–107(1)(g) provides that the following persons “shall not be examined as a witness”:

[a] licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor ... without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment.

¶ 19 Looking to the plain language of the statute, we initially note that a “witness” is “[o]ne who gives testimony under oath or affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit.” Black's Law Dictionary 1740 (9th ed. 2009); seePeople v. Martin, 316 Mich. 669, 26 N.W.2d 558, 560 (1947) (“ ‘The term ‘witness,’ in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a court or jury.' ” (quoting 70 C.J. 34)); see alsoConcerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.2002) (“We must give words not defined in the statute their plain and ordinary meanings.”).

¶ 20 Additionally, this section is located in Title 13, which is entitled “Courts and Court Procedure.” SeeFrazier v. People, 90 P.3d 807, 811 (Colo.2004) (“Although the title of a statute is not dispositive of legislative intent, it is a useful aid in construing a statute.”); see alsoPeople v. Bowman, 812 P.2d 725, 728 (Colo.App.1991) (“In construing a statute, the whole act must be considered so as to give consistent, harmonious, and sensible effect to all of its parts.”).

¶ 21 Thus, viewing the statute in context, and based on its plain language, we understand the statute to grant to the people listed therein protection from being questioned in a manner that will result in their disclosures being used at any stage in the litigation process. SeeCardenas v. Jerath, 180 P.3d 415, 424 (Colo.2008) (“This privilege applies equally to pretrial discovery as it does to in-court testimony.”); cf.Turner, 109 P.3d at 644 (“[T]he clear language of the [victim-advocate privilege] statute extends the privilege so as to prohibit the disclosure of information contained in records or reports, such that ‘examined’ is not a restrictive term making the privilege effective only at trial.”).

¶ 22 This interpretation is further supported by numerous Colorado appellate court decisions describing the psychotherapist-patient privilege as a “testimonial” privilege. SeeClark v. Dist. Court, 668 P.2d 3, 8 (Colo.1983) (the...