Establishing a Telemedicine Practice in Colorado
Prior to COVID-19, telemedicine was showing strong trends of growth; however, in the last few weeks, telemedicine practices have surged to a point where companies providing platforms for these practices can barely keep up with demand. While there are state and federal laws surrounding telemedicine, federal laws such as HIPAA are quickly being relaxed or waived, making it easier for physicians to immediately establish a telemedicine practice. Starting a telemedicine practice at this time has tremendous potential to make an enormous impact on the present COVID-19 pandemic, but also serves long term goals to make medical practices more profitable, improve patient outcomes, and give providers increasing flexibility. The following provides key considerations for Colorado healthcare providers looking to establish telemedicine practices and an update on the current status of HIPAA waivers for telemedicine.
Telemedicine or telehealth lacks a uniform, nationwide regulatory structure. Any physician looking to practice telemedicine must look to state law and regulation where the physician is licensed, as well as any foreign jurisdiction where the physician wishes to practice. Importantly, a violation of another state’s healthcare practice and licensure laws would likely constitute a violation of Colorado standards and therefore threaten licensure penalties in Colorado. Importantly, in Colorado, licensing is subject to the physical location of the patient (not the provider).
Colorado law provides that telemedicine is generally permissible for all healthcare professionals with important requirements and a few restrictions. Providers must obtain informed consent from their patients, and there must be parity with the quality of professional standards to in-person care. This means providers must conform with traditional standards of care regardless of whether services are provide in person or remotely. Ultimately, the patient experience cannot be inhibited by the utilization of telemedicine services. Informed consent should adequately convey to the patient the inherent limitations of Telehealth, which typically refers to patient information, IT security, confidentiality and limitations to the scope of services.
Colorado law also specifically sets forth express limitations on providers, including a bar on providing treatment based on a questionnaire (that expressly would fail to meet the applicable standard of care), and a physician may not recommend medical marijuana to their patients under any circumstances.
Generally, providers who practice telehealth must also comply with federal and state privacy laws. Importantly, however, in light of COVID-19, HIPAA enforcement has currently been suspended by the U.S. Health and Human Services (HHS) Office for Civil Rights. The HHS has made a statement that it will not penalize physicians for non-compliance with HIPAA when they serve patients in good-faith using common non-public facing communications such as FaceTime and Skype. This waiver applies to services provided via telehealth for any reason, and not just suspected cases of COVID-19. Physicians should still notify patients of potential IT security risks, and may want to check with individual payers regarding their individual requirements in light of the HHS announcement. The HHS notice is available here.
If you’re a physician and have questions about establishing a telemedicine practice in Colorado or Texas, our attorneys can help. We can guide you through the state and federal regulatory framework to quickly get your telemedicine practice up and running. We are providing expedited processing on all legal services related to establishing and setting up telemedicine practices. Please contact Christina Saunders by telephone at 303-396-0270 or by e-mail at christina@saunders-saunders.com for a consultation.