Thome v. Cook (Summary)

NPDB REPORTS BY STATE BOARDS

Thome v. Cook, No. 11-cv-03320-RM-MEH (D. Colo. Apr. 22, 2014)

The U.S. District Court for the District of Colorado dismissed a claim brought by a licensed counselor against the Colorado Board of Licensed Professional Counselor Examiners (the “Board”), in which she alleged that it inappropriately tendered a letter of admonition involving her to the National Practitioner Data Bank (“NPDB”).  The case involved a licensed counselor who was charged by the Board for failure to follow applicable standards of the profession.  The charges were ultimately overturned by a court and, eventually, dismissed by the Board, but not until after a letter of admonition had been filed with the NPDB.  The counselor filed suit seeking damages under federal and state law for what she described as “fabricated” charges and an “informal sham process.”

In a prior opinion, the court dismissed all of the claims related to the Board’s proceedings, noting that the Board and its members were entitled to judicial and prosecutorial immunity under state law.  Accordingly, after the counselor amended her complaint, the court was merely considering the issue of whether the Board’s submission of the letter of admonition to the NPDB was covered by the judicial and prosecutorial immunity.

The counselor argued that immunity would be inappropriate since the letter was not legally tendered.  In support of this argument, the counselor argued that because the Board’s proceedings were inappropriate, the report of the outcome of those proceedings was not legally mandated.  Further, she argued that because the Board missed the 30-day deadline to submit the report, it was not legally mandated.

The court rejected both of these arguments, noting that even if the contents of the letter were erroneous (because the conclusions therein were based on a sham process), the legal mandate to report the letter was clear and was intertwined with the Board’s adjudication process.  Further, the court noted no case law “putting forth the proposition that missing a reporting deadline renders the reporting” outside of the legal mandate.  Therefore, the court held that the report of the letter of admonition was part of the proceeding in this case and the Board and its members were, in turn, entitled to immunity for their participation in making that report.