DEPARTMENT OF REGULATORY AGENCIES Colorado Medical Board RULE 295 - REGARDING CONFIDENTIAL AGREEMENTS 3 CCR 713-38 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ Basis:

The authority for the promulgation of these rules and regulations by the Colorado Medical Board (“Board”) is set forth in Sections 12-36-104(1)(a) and 12-36-118.5, C.R.S. Purpose:

To establish and clarify the notification requirements for a physical or mental illness or condition that impacts a physician’s or physician assistant’s ability to perform a medical service with reasonable skill and safety to patients. Consistent with Section 12-36-118.5, C.R.S., a physician or physician assistant who appropriately addresses their physical or mental illness or condition will not be subject to discipline for unprofessional conduct due to the health condition. Prior to the 2009 Sunset Process, the Medical Practice Act defined unprofessional conduct to include having a physical or mental disability that rendered the licensee unable to perform medical services with reasonable skill and with safety to the patient. Physicians and physician assistants who had done nothing wrong, but suffered from a disability, were subject to discipline by the Board by virtue of the disability. Not only did the Medical Practice Act require discipline in such situations, but it defined the underlying conduct, i.e., having a disability, as unprofessional. Following the Sunset Review in 2009, the General Assembly amended the Medical Practice Act to redefine unprofessional conduct. As amended, unprofessional conduct no longer includes merely having a physical or mental illness or condition. Rather, a physician or physician assistant is now able to address a physical or mental illness or condition without the stigma of a disciplinary action provided the physician or physician assistant acts within the limitations created by that physical or mental illness or condition. A physician or physician assistant would only be subject to disciplinary action if the physician or physician assistant failed to comply with the limitations of a Confidential Agreement entered into pursuant to Section 12-36-118.5, C.R.S., failed to act within the limitations created by the physical or mental illness or condition or failed to notify the Board of a physical or mental illness or condition that impacts a licensee’s ability to perform a medical service with reasonable skill and safety to patients.

Rule:

1. No later than thirty (30) days from the date a physical or mental illness or condition impacts a physician’s or physician assistant’s ability to perform a medical service with reasonable skill and safety, the physician or physician assistant shall provide the Board, in writing, the following information:

1. a. The diagnosis and a description of the illness or condition;
2. b. the date that the illness or condition was first diagnosed;
3. c. the name of the current treatment provider and documentation from the current treater confirming the diagnosis, date of onset, and treatment plan; Code of Colorado Regulations 1 d. a description of the physician’s or physician assistant’s practice and any modifications, limitations or restrictions to that practice that have been made as a result of the illness or condition;
4. e. whether the physician or physician assistant has been evaluated by, or is currently receiving services from the Board’s authorized Peer Health Assistance Program related to the illness or condition and, if so, the date of initial contact and whether services are ongoing.

2. The physician or physician assistant shall further notify the Board of any significant change in the illness or condition (“change of condition” ) that impacts the physician’s or physician assistant’s ability to perform a medical service with reasonable skill and safety. The physician or physician assistant must notify the Board of a positive or negative change of condition. Such notification shall occur within thirty (30) days of the change of condition. The physician or physician assistant shall provide the Board, in writing, the following information:

1. a. The date of the change of condition;
2. b. the name of the current treatment provider and documentation from the current treatment provider confirming the change of condition, the date that the condition changed, the nature of the change of condition, and the current treatment plan;
3. c. a description of the licensee’s practice and any modifications, limitations or restrictions to that practice that have been made as a result of the change of condition;
4. d. whether the physician or physician assistant has been evaluated by, or is currently receiving services from, the Colorado Physician Health Program related to the change of condition and, if so, the date of initial contact and whether services are ongoing.

3. Compliance with this rule is a prerequisite for eligibility to enter into a Confidential Agreement with the Board pursuant to 12-36-118.5, C.R.S. However, mere compliance with this rule does not require the Board to enter into a Confidential Agreement. Rather, the Board will evaluate all facts and circumstances to determine if a Confidential Agreement is appropriate.

4. If the Board discovers that a physician or physician assistant has a mental or physical illness or condition that impacts the physician’s or physician assistant’s ability to perform a medical service with reasonable skill and safety and the physician or physician assistant has not timely notified the Board of such illness or condition, the physician or physician assistant shall not be eligible for a Confidential Agreement and may be subject to disciplinary action pursuant to §12-36-117(1)(o), C.R.S.

Adopted 08/19/10; Effective 10/15/10 _________________________________________________________________________ Editor’s Notes History Entire emer. rule eff. 07/01/2010.

Entire rule eff. 10/15/2010.

Code of Colorado Regulations 2