On August 20, 2015, the Colorado Medical Board (the Board) adopted Policy 40-27, which sets forth important new guidelines for providers delivering healthcare services via telehealth technologies, including the ability to issue prescriptions. The Board also adopted corresponding changes to Policy 40-03, which expands the definition of provider-patient relationships to include those made through use of telehealth technologies, and Policy 40-09, which sets forth guidelines for providers issuing prescriptions, including through use of telehealth technologies, so long as the provider-patient relationship is present.

New Policy 40-27 seeks to broadly align the professional standards of medicine whether provided through in-person encounters or via telehealth technologies. “Telehealth technologies” is broadly defined to mean a mode of delivering healthcare services through telecommunication systems to allow for the treatment of a patient at a location different from the provider’s location. Policy 40-27 includes the following new guidelines:

• Providers who use telehealth technologies must be licensed in Colorado to treat patients who are located in Colorado.
• Providers may establish a new provider-patient relationship utilizing telehealth technologies, but must do so in accordance with generally accepted standards of practice and updated Policy 40-03.
• A provider’s treatment and consultation recommendations made utilizing telehealth technologies, including issuing prescriptions, will be held to same standards of practice as those for traditional in-person patient encounters. Issuing a prescription based only on an online questionnaire does not constitute an acceptable standard of care.
• Appropriate informed consent must be obtained and documented. The final Policy 40-27 eliminated the requirement in the initial draft of Policy 40-27 that would have required specific consent requirements for providers when utilizing telehealth technologies.
• When utilizing telehealth technologies, providers must follow generally accepted standards for continuity of care for patients. The final Policy 40-27 eliminated the requirement in the initial draft of Policy 40-27 that patients who utilize telehealth technologies “should be able to seek, with relative ease, follow-up care or information from the provider.”
• Providers utilizing telehealth technologies should provide an emergency plan when necessary for the safety of the patient. The final Policy 40-27 eliminated the requirement in the initial draft of Policy 40-27 that an emergency plan include “a formal, written protocol appropriate to the services being rendered via telemedicine technologies.”
• Providers must give appropriate disclosures when utilizing telehealth technologies. The final Policy 40-27 removed the fairly detailed disclosure requirements that were included in the initial draft of Policy 40-27, such as disclosures about the specific services offered, the licensure of providers, fee amounts and how payment is made, and what information is collected from patients and any passive tracking mechanisms utilized.

Under revised Policy 40-09, physicians may now issue a prescription “via any means” so long as the provider-patient relationship has been established under Policy 40-03. Revised Policy 40-09 eliminated the requirement that Colorado physicians must have an in-person meeting with patients to establish the patient-physician relationship before issuing a prescription for this patient.

Finally, revised Policy 40-03 provides a new definition of “provider-patient relationship,” which clarifies that no prior in-person encounter is required before utilizing telehealth technologies. Under revised Policy 40-03, a provider-patient relationship is established when:

• A provider agrees to undertake treatment of a patient;
• The patient (or her proxy) agrees to be treated, regardless of whether there has been a prior, in-person encounter; and
• The provider verifies and authenticates the patient’s identity and location, the provider discloses the provider’s identity and credentials to the patient and the provider receives appropriate informed consent from the patient.

These new telehealth policies go a long way to closing several gaps that existed in the Board’s prior policies after Colorado’s “full parity” telemedicine law, H.B. 15-1029, went into effect on March 20, 2015, as we noted in a prior Health Law Checkup. However, Colorado Pharmacy Board Rule 3.00.21 still contains limits on a pharmacist’s ability to dispense prescriptions to patients that the pharmacist knew or should have known did not have a valid (i.e., in-person) preexisting patient-practitioner relationship. Accordingly, pharmacists should continue to use caution when providing prescriptions to patients that were issued by providers through use of telehealth technologies.