AVC Confidentiality
Last month, the State Licensing Authority issued a decision determining that any Assurance of Voluntary Compliance (“AVC”) made by a licensee and the MED is not confidential in response to a Colorado Open Records Act (“CORA”) request. The main take away from this guidance is that any licensee who enters into an AVC should understand that MED considers these public records that may be released to third parties.
An AVC is a document where a licensee agrees to comply with MED rules that he or she is alleged to have violated, under MED rule 1204. By signing and complying with an AVC, a licensee may be able to avoid disciplinary hearings, or sanctions against their license such as fines, suspensions or revocation. An AVC is not an admission to an allegation, and licensees may always choose to dispute allegations via the formal hearing and disciplinary process rather than entering into an AVC.
When a licensee complies with the terms of an AVC, the AVC constitutes a resolution of the allegations against that licensee. According to the State Licensing Authority’s decision, this makes an AVC a final decision of the Authority in MED enforcement proceedings against that licensee.
As a final enforcement decision, any AVC is a public record subject to disclosure under CORA. This is different from some other types of information submitted by licensees to the MED, including business, financial, cultivation, testing, patient and sales information which are made confidential by C.R.S. 12-43.3-202(I)(d). In addition, investigatory reports and MED testimony are considered confidential information and not subject to disclosure.
The State Licensing Authority’s decision that AVCs are not confidential means that any AVC entered by a licensee will be disclosed in response to a CORA request. The MED will redact information that is confidential under statute, but the general terms of the AVC will be released to a CORA request. The MED will also provide AVCs without redaction to local licensing authorities conducting investigation.
McAllister Garfield, P.C. has represented numerous licensees in enforcement actions before the MED, and has successfully resolved allegations via dismissals, AVCs, hearings, and stipulations. If you have any questions about MED disciplinary proceedings or the confidentiality of your information, please contact us.
Sincerely,
Sean T. McAllister
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