Considerations for Colorado Health Providers and Telehealth Services

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Telehealth Lacks a Uniform, Nationwide Regulatory Structure.

Telehealth, i.e., the provision of healthcare services over telecommunication systems, is a fast-evolving area of both the medical and mental health industries. It promises streamlined and convenient healthcare access for patients and providers. Currently, however, there is not a uniform, federal telehealth statute permitting the provision of interstate telehealth services, and rules governing telethealth accordingly remain a patchwork of state-to-state regulations. Telehealth providers in jurisdictions that permit telehealth may therefore unwittingly wade into inappropriate practice by providing services to patients in others jurisdictions that do not.

Check the Foreign Jurisdiction’s Laws.

While Colorado generally permits intrastate telehealth (see, e.g., Colorado Medical Board (CMB) Policy 40-27, Colorado State Board of Psychologist Examiners (CPB) Policy 30-1 and Colorado Board of Licensed Professional Counselor’s (CLPCB) Policy 30-1). The problem is, however, many states do not currently permit the practice of telehealth across state lines absent licensure in both the provider’s home state and the state where the patient is located. See, e.g., CMB Policy 40-27 (the practice of telehealth occurs “where the patient is located at the time telehealth technologies are used.”). Therefore, if a Colorado-based medical or mental health professional seeks to provide healthcare services to a patient in a separate state, it is critical the provider first determines the applicable telehealth laws of the foreign jurisdiction. Importantly, a violation of another state’s healthcare practice and licensure laws will likely constitute a violation of care Colorado standards potentially leading to licensure penalties regardless if Colorado permits the practice in state.

Additional Telehealth Practice Considerations.

In Colorado, telehealth is generally permissible for all healthcare professionals where the provider takes certain precautions and implements an appropriate informed consent. At all times, the patient’s welfare is paramount. The appropriate method of care for each patient, including prescribing for medical professionals, is within the provider’s discretion as long as it conforms to traditional notions of appropriate care (including as contained within the Medical Practice Act, C.R.S. § 12-36-101, et seq. and the Mental Health Practices Act, C.R.S. § 12-43-101, et seq).

The various medical and mental health boards recommend initial consultations be in-person, if possible, and adequate to provide a conclusive diagnosis and treatment plan. They also recommend to have at least periodic, face-to-face meetings during the ongoing relationship. In all cases, there must be parity in the quality of the professional services to in-person services; the patient experience cannot be inhibited by the utilization of telehealth therapies.

Similarly, a provider should have an informed consent in place that adequately discusses the inherent limitations of telehealth. The various healthcare societies have all established recommendations for what should be included in the informed consent, as well as part of the consent process. See, e.g., the American Medical Association’s Code of Medical Ethics Opinion 1.2.12; the American Counseling Association’s Code of Ethics, § H.2; and the American Psychology Association’s Guidelines for the Practice of Telepsychology, Guideline 3. These requirements primarily relate to patient information, technology security, confidentiality, and the scope and structure of the telehealth services.

Providers should generally implement a number of additional items as part of any telehealth relationship. Several of these requirements exist within the above-cited board policies.

  1. Verify the identity of the patient, including determining if the patient is a minor;

  2. Provide the patient with procedures for alternative modes of communication when there is possible technology failure;

  3. Assess how to cope with potential misunderstandings when the visual or physical cues that would normally occur during face-to-face visits do not exist;

  4. Have a patient-specific plan for addressing a potential crisis or emergency intervention;

  5. Ensure patients are knowledgeable with regard to encryption methods, firewall, and backup systems to help secure communication and educate patients on the risk of unsecured communications (while remaining HIPAA compliant);

  6. Establish a means to retain and preserve data from telehealth visits;

  7. Have the ability to capture and provide a patient treatment notes, summaries, or other information received via the electronic technology;

  8. Vet the availability of health insurance coverage for telehealth services and communicate the same to the patient.

Of course, any potential provision of telehealth services will be unique to the specific provider’s services, and patient population. Certain maladies will not lend themselves to appropriate diagnosis and treatment over a telecommunications system. A provider considering the provision of telehealth services should therefore consult an attorney to discuss the applicable regulations, scope, and limitations of the practice.

Zach Warkentin is a healthcare attorney in Denver, Colorado. For more information about Zach, please visit WLLC’s About page.

DISCLAIMER: The above discussion is for informational purposes only and is not intended to be legal advice. You should contact an attorney to discuss any particular legal issue or problem. Use of and access to this website do not create an attorney-client relationship between Warkentin LLC and the reader.

Zachary Warkentin