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2019 Colorado Health Care Legislative Update

The 2019 session of the Colorado Legislature adjourned May 3, and this year’s legislature was very active in the health care space. Among the many changes to Colorado health care law are bills affecting home caregiver wages, out-of-network hospital billing, licensing requirements for freestanding emergency departments, and a new prohibition on conversion therapy. This GT Alert provides a summary of some of the most impactful health care bills that passed this session, organized by provider type.

General Applicability

HB19-1174: Out-of-Network Provider Disclosures

  • Requires health insurance carriers, health care providers, and health care facilities by Jan. 1, 2020, to begin providing patients covered by health benefit plans with information about the potential impact of receiving services from an out-of-network provider or facility.
  • Requires certain regulatory agencies to promulgate rules that specify the requirements for disclosures to consumers, including the timing, format, and contents, and language in the disclosures.
  • Establishes the reimbursement amount insurance carriers must pay to out-of-network providers that provide health care services to covered persons at an in-network facility and for out-of-network providers or facilities that provide emergency services to covered persons.
  • Prohibits “balance billing” patients who receive covered services from out-of-network providers at an in-network facility or who receive emergency services from out-of-network providers or facilities.

SB19-201: Provider Communication Following Patient Death or Injury

  • Establishes a formal process to begin “open discussion” between a patient and a health care provider or health facility after an adverse health care incident.
  • Provides that communications between a patient and provider or facility and made during “open discussions” are privileged and confidential, are inadmissible as evidence in any subsequent proceedings arising directly out of the adverse health care incident, and are not subject to discovery, subpoena, or other means of legal compulsion for release.
  • To initiate protected communications, a health care provider (or a health care provider jointly with a health care facility) may, within 180 days of discovery of the adverse health care incident, provide the affected patient with written notice of the desire to enter into an open discussion. The notice must include an explanation of the patient’s right to receive copies of medical records, a statement regarding the patient’s right to seek legal counsel, a copy of certain relevant statutes, and notice that communications made in the course of the open discussion are protected and not discoverable in a legal proceeding.

Physicians and Physician Assistants

HB19-1095: Physician Assistant Supervision and Liability

  • Adds definitions that deal with physician assistant supervisory requirements and liability, depending on the physician assistant’s level of experience. Notably, for physician assistants with less than three years of experience, after that physician assistant completes 160 working hours under supervision of a supervising physician, such supervising physician must still remain available to the physician assistant via a telecommunication device at all times when the physician assistant is working. For physician assistants with more than three years of experience practicing in Colorado, such physician assistant and a supervising physician must enter into a practice agreement that includes certain required provisions. And, HB19-1095 includes specific supervision requirements for physician assistants who have more than one year of experience, but are changing specialty.
  • Provides that a physician assistant who has practiced for at least three years may be liable for damages related to the physician assistant’s negligent conduct, unless such conduct is a result of a direct order from a supervising physician.
  • Requires physician assistants who have practiced for at least three years to maintain professional liability insurance in an amount of at least $1,000,000 per claim/$3,000,000 in the aggregate. 
  • Increases the number of physician assistants that a physician can supervise at any one time from four to eight, without needing to obtain specific approval from the Medical Board.
  • A physician can supervise over four physician assistants at any one time only with the physician’s express agreement; an employer cannot require that a physician supervise more than four physician assistants at any one time as a condition to employment.
  • Increases the number of members on the Medical Board from 16 to 17, and increases the number of physician assistants on the Medical Board from one to two.
  • Adds a physician assistant as a member of the Medical Board’s licensing panel.

HB19-1131: Prescription Drug Cost Education

  • In the context of prescription drug marketing, this bill requires that manufacturers and any representative of a manufacturer provide information about the wholesale acquisition cost of a prescription drug when providing information about that drug to a health care provider licensed to prescribe controlled substances or prescription drugs.
  • When providing wholesale prescription drug price information, the manufacturer and any representative thereof must also provide a list of at least three generic prescription drugs from the same therapeutic class and the wholesale acquisition costs of those drugs; if three are not available, then the manufacturer or any representative thereof must provide information about as many as are available for prescriptive use.

SB19-013: Prescription of Medical Marijuana

  • In the context of prescribing medical marijuana, any condition for which a physician could prescribe an opioid now qualifies as a “disabling condition” for which a physician could prescribe medical marijuana.
  • With respect to prescribing medical marijuana to a minor, removes the existing requirement that a minor must be diagnosed as having a disabling medical condition by two physicians, one of whom must be a board-certified pediatrician, a board-certified family physician, or a board-certified child and adolescent psychiatrist who attests that he or she is part of the patient’s primary care provider team. Under SB19-013, to prescribe medical marijuana to a minor, two physicians still need to diagnose a patient with a disabling medical condition. But, if the physician recommending prescription of medical marijuana to a minor is not that patient's primary care physician, the recommending physician only needs to review the records of the physician or licensed mental health provider who diagnosed the minor patient as having a disabling condition.
  • Permits a minor patient with a disabling medical condition to consume medical marijuana on school grounds or a school bus only in a non-smokable form.

Free-Standing Emergency Departments

HB 19-1010: Freestanding Emergency Department Licensing

  • Creates a new facility license for a freestanding emergency department (FSED) facility, which provides emergency care and may provide primary care or urgent care. 
  • Mandates that all FSEDs operating in Colorado obtain a FSED license by July 1, 2022, including FSEDs that:

–      are owned by, operated by, or affiliated with a hospital and located more than 250 yards from the main campus of the hospital; or

–      are independent from, and not operated by or affiliated with, any hospital or hospital system and not attached to or located within 250 yards of, or contained within, a hospital.

  • Provides that a health facility that was licensed by the Colorado Department of Public Health and Environment prior