Colorado Proposes New Telehealth Rules

by Foley & Lardner LLP

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.

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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.

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