Colorado Proposes New Telehealth Rules

by Foley & Lardner LLP
Contact

The Colorado Medical Board proposed updated draft guidelines for the delivery of healthcare services via telehealth, as well as remote prescribing for new patients. Recognizing that “using telehealth technologies in the delivery of medical services offers potential benefits in the provision of medical care,” Colorado’s guidelines are intended to standardize care while increasing more widespread access for patients. And no: Colorado doctors are not allowed to prescribe medical marijuana via telehealth consults.

The proposed revisions change current Board Policy 40-3 and Policy 40-9, and introduce a new Policy 40-27. Highlights of include:

  • Licensure: The practice of medicine occurs where the patient is located at the time of the consult. As such, a provider must be licensed in Colorado to evaluate or treat patients located in Colorado.
  • Establishment of a Provider-Patient Relationship: A valid provider-patient relationship may be established via telehealth so long as the Board guidelines are met in light of generally accepted standards of practice. Specifically, a valid provider-patient relationship is established when the provider:
    • Agrees to “undertake diagnosis and treatment of the patient and the patient agrees to be treated – whether or not there has been an in-person encounter;”
    • Verifies and authenticates the patient’s identity and location;
    • Discloses his or her identity and applicable credential(s) to the patient; and
    • Obtains appropriate consent after disclosures regarding the delivery methods or limitations, including any special informed consents regarding the use of telehealth technologies.

A valid provider-patient relationship has not been established when either the identity of the provider is unknown to the patient or the identity of the patient is not known to the provider.

  • Telehealth Consultations and Treatment: Treatment and consultation recommendations, including remote prescribing, will be held to the same standards of appropriate practice as those in traditional settings. These standards include a documented medical evaluation and relevant clinical history to establish a diagnosis, as well as identifying contra-indications to care and underlying conditions prior to providing treatment. Treatment, including issuing a prescription, based solely on an online questionnaire does not constitute an acceptable standard of practice.
  • Remote Prescribing: The guidance allows remote prescribing, and holds that prescribing medications (whether in-person or via telehealth) is at the discretion of the provider so long as the prescribing is performed consistent with current standards of practice. The guidance makes no mention of remote prescribing of controlled substances. Nor does the guidance mention the related Colorado pharmacy rule (3 CCR 719-1 section 3.00.21) (“A pharmacist shall not dispense a prescription drug if the pharmacist knows or should have known that the order for such drug was issued on the basis of an internet-based questionnaire, an internet-based consultation, or a telephonic consultation, all without a valid preexisting patient-practitioner relationship.”). The guidance does not allow providers to prescribe medical marijuana via telehealth consults.
  • Informed Consent: Patient informed consent for the use of telehealth technologies must be obtained and maintained as a part of the medical record.
  • Continuity of Care: Patients should be able to seek “with relative ease” follow-up care or information from the provider.
  • Referrals for Emergency Services: A provider is required to maintain an emergency plan when the care indicates referral to a hospital or Emergency Department is necessary for the safety of the patient. The emergency plan should include a formal, written protocol.
  • Medical Records: Medical records, including electronic communications, created during the telehealth consult must be documented by the provider and accessible to the patient. This includes patient informed consent and instructions provided or obtained in connection with the telehealth consult.
  • Privacy and Security of Patient Records & Exchange of Information: Providers should meet or exceed applicable federal and state requirements for privacy and security. Providers should maintain their own written policies and procedure consistent with state and federal law in an in-person setting, including a policy for the maintenance and transmission of electronic records.
  • Disclosures and Functionality for Providing Online Services: The guidance states that certain disclosures should be made when using online services to provide medical care via telehealth including: the specific services provided; contact information; licensure and qualifications; financial interests; uses and limitations of the website; uses and response times for email or electronic messages; information collected and any tracking mechanisms utilized; and the ability to provide feedback or register complaints with the Board of Medicine.
  • Patient Functionality for Online Services: Online services used by providers offering telehealth services should provide patients a clear mechanism to:
    • Access, supplement and amend patient-provided personal health information.
    • Provide feedback regarding the site and the quality of information and services.
    • Register complaints, including information regarding filing a complaint with the Board.
    • Online services must have accurate and transparent information about the website owner/operator, location, and contact information, including a domain name that accurately reflects the identity.
  • Disclosures for Providing Online Services: The guidance states that certain disclosures should be made when using online services to provide medical care via telehealth including:
    • Specific services provided.
    • Contact information for provider.
    • Licensure and qualifications of provider(s) and associated providers.
    • Fees for services and how payment is to be made.
    • Financial interests, other than fees charged, in any information, products, or services provided by a provider.
    • Appropriate uses and limitations of the site, including emergency health situations.
    • Uses and response times for e-mails, electronic messages and other communications transmitted via telehealth technologies.
    • To whom patient health information may be disclosed and for what purpose.
    • Rights of patients with respect to patient health information.
    • Information collected and any passive tracking mechanisms utilized.

Colorado’s Board Policy Workgroup meeting to review the proposed guidelines is currently scheduled for the week of July 20 or 27, 2015 followed by presentation to the Medical Board for consideration on August 21, 2015.

View This Blog

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP
Contact
more
less

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.