dissenting:
The majority in this case holds that a supplemental order issued subsequent to a final board order (FBO) in a disciplinary proceeding must be vacated. The majority holds that because the notice of appeal removes the case from the Board of Medical Examiners’ (Board) jurisdiction, the Board can not issue a supplemental order imposing additional discipline.
I agree with the majority that the notice of appeal removes jurisdiction from an administrative agency to impose additional discipline. However, I disagree with the majority in holding that the supplemental order is additional discipline. Rather, the supplemental order is simply implementation of the FBO, which is entirely within the jurisdiction of the Board absent a stay of the proceedings.
The Board initiated disciplinary proceedings against Omar Lopez-Samayoa, M.D., by filing a formal complaint on October 10,1990. Each count involved separate patients and various treatments which failed to meet generally accepted standards of medical practice, in violation of section 12-36-117(l)(p), 5B C.R.S. (1991). After a hearing in 1991, an administrative law judge (ALJ) issued an initial decision recommending probation of Lopez because of substandard care given in five of seven cases. The ALJ recommended that Lopez receive two years of probation with practice monitoring and an evaluation by the Colorado Personalized Education Program for Physicians (CPEPP).
In May 1992, the Board entered its FBO, rejecting the ALJ’s recommended discipline and putting Lopez’s license on probationary status for five years. The FBO required Lopez to obtain a practice monitor and undergo assessment by CPEPP. The Board also expressly stated that additional discipline would be imposed subsequent to a CPEPP evaluation:
Following review of the CPEPP assessment results and the record in the case, the Board will issue a supplemental Order directing Respondent to acquire additional education, training, and skills achievement. The terms and conditions of the Order, insofar as they pertain to education, training, and skills achievement, shall not exceed requirements that Respondent promptly enter a residency training program, approved by the Accreditation Council for Graduate Medical Education (“ACGME”) and acceptable to the Board, that respondent limit his medical practice to that required by the training program until he satisfactorily completes the residency, and that Respondent achieve specialty certification by a board approved by the American Board of Medical Specialties (“ABMS”). The Order may place requirements and limitations upon respondent with respect to the time frame within which he must enter and complete education, training and skills achievement, and may limit or restrict the nature of his medical practice until the required education, training, and skills achievement have been accomplished.17
Finally, the FBO included a statement advising Lopez of his right to appeal:
This decision becomes final upon mailing.Any party adversely affected or aggrieved *17by any agency action may commence an action for judicial review before the Court of Appeals within forty-five (45) days after such action becomes effective.
Lopez filed an appeal shortly thereafter. At the same time, he filed a motion for a stay of the effective date of the FBO, alleging that he would suffer irreparable injury to his medical practice unless the sanctions of the Board were stayed. The court of appeals denied his request and allowed the Board to proceed with sanctions.
Five months after the appeal had been docketed in the court of appeals, the Board issued a Supplemental Final Board Order pursuant to the CPEPP assessment requiring:
1. As soon as possible, but in no event later than July 1, 1994, Respondent shall begin participation either in a residency training program approved by the Accreditation Council for Graduate Medical Education and acceptable to the Board or in a focused educational program under the auspices of CPEP[P] and acceptable to the Board.
2. Prior to petitioning the Board for termination of the probationary period required by the final board order dated May 8, 1992, Respondent shall achieve certification by a specialty board recognized by the American Board of Medical Specialties and acceptable to the Board.
3. Until authorized by further order of the Board, Respondent shall not perform major surgery. Respondent may assist at such surgeries, provided that the physician performing the surgery is a board-certified surgeon who possesses privileges to undertake the procedure in the facility where surgery is performed....
4. Until authorized by further order of the Board, Respondent shall confine his obstetrical practice to routine prenatal care and normal vaginal deliveries. Respondent shall not treat high risk obstetrical patients....
Lopez argued that the Board lacked jurisdiction to issue the supplemental order. The majority agrees and holds that the Board did not have jurisdiction “to substantively alter its original order, which is precisely what it did by purporting to impose additional educational requirements in its second order.” Maj. Op. at 19. I disagree and would hold that all of the disciplinary measures taken in the supplemental order were articulated in the first order as disciplinary measures subsequent to the CPEPP assessment. As such, the measures taken by the Board were not additional discipline, but rather implementation of the FBO.
The FBO stated that the Board “will issue a supplemental order directing” him to acquire additional skills, education and training. The FBO even included a list of possible restrictions, including entering a residency program, limiting Lopez’s practice, and requiring specialty certification. None of the sanctions imposed by the supplemental order exceeded the scope of remedial measures articulated in the FBO.
The majority holds that “an administrative agency is without authority to change, alter or vacate an order while review proceedings are pending....” Colorado Anti-Discrimin. Comm’n v. Continental Air Lines, 143 Colo. 590, 355 P.2d 83 (1960). While it is true that the administrative agency can not change the order, it may impose any disciplinary sanctions discussed in the FBO.
Any remedial measures taken pursuant to the CPEPP assessment and within the boundaries articulated in the FBO were appropriate disciplinary measures and not additional penalties. By not staying the FBO, the court of appeals permitted the Board to put into place a practice monitor, to conduct random reviews of Lopez through the practice monitor, to conduct a CPEPP assessment, and to have additional educational and skills requirements placed upon him. Under the order, the Board would also monitor the compliance with the terms of the order. If Lopez did not comply with reasonable skill and safety, the Board reserved the right to initiate additional proceedings. Finally, if the Board had reasonable grounds to believe that Lopez was in violation of the Order, they had authority to immediately suspend Lopez’s license. All of these actions are disciplinary measures to ensure reasonably safe health care, and any actions taken pursuant *18to the FBO would simply be implementation of the. FBO, not additions.
Lopez had 45 days to appeal the determination of the FBO. He argues that a logistical difficulty arises. Had he waited for the CPEPP assessment and the discipline from that assessment, he would have had to wait too long for an appeal. I disagree.
Under my interpretation, Lopez was required to appeal the. FBO within 45 days of its issuance. However, whenever discipline is imposed on him, he could still appeal the disciplinary measures of the order. Indeed, the supplemental order included the same 45-day appeal provision as the FBO. The nature of the dispute may change because the FBO appeal would involve the validity of the charges, whereas the appeals from the disciplinary measures would more likely focus on the severity of the measures.
Because I believe that the supplemental order is a remedial measure articulated by the FBO, I would not vacate the supplemental order and would affirm the holding of the court of appeals.
I respectfully dissent.
SCOTT, J., joins in the dissent.
. After 54 months, Lopez could petition the Board for termination of the FBO.