Prior to July 1, 2010, Colorado’s Medical Practice Act included within its definition of “Unprofessional Conduct” any physical or mental condition that rendered a physician or physician assistant unable to practice with reasonable skill and safety to patients. As a former attorney for the Colorado Medical Board, this was one of the most troubling aspects of the Medical Practice Act, because doctors who had done nothing wrong were subject to discipline. Often we were put in the position of having to discipline a physician who self-reported a physical disability and would voluntarily agree to limit their practice, because the Board had no other mechanism for enforcing practice limitations. This resulted in public discipline for a doctor who had never endangered patients.
Fortunately, the General Assembly reworked the law, revised C.R.S. § 12-36-117(1)(o), and enacted 12-36-118.5 entitled “Confidential Agreements to Limit Practice. The new statute permits the Colorado Board of Medical Examiners to enter into confidential practice-limitation agreements with physicians and physician assistants who suffer from a physical or mental condition. This is a welcome departure from the prior rule, which many considered draconian.
The new law, however, is not without its limitations. First, Board Rule 295 makes clear that the new law is permissive, and that the Board is not required to enter into a confidential agreement if it deems the agreement inappropriate. Also, alcohol and drug use are not considered to be within the scope of the new rule. Thus, doctors and P.A.s with alcoholism or drug addiction will not likely be able to avoid public discipline. Physicians are expected to self-limit their practice and may be subject to discipline if he or she fails to act within the limitations imposed by their condition. For example, a surgeon with failing vision or motor-control issues who nonetheless performs surgery commits unprofessional conduct and may be disciplined. Even if a licensee does not endanger patients by practicing outside their physical or mental limitations, he or she may be disciplined if they do not timely report the condition to the Board. The agreements themselves will require periodic monitoring with C.P.H.P. and can be modified based on changes in condition. Once a confidential agreement is reached, the physician/P.A. may be disciplined for violation.
The reporting requirements associated with the new statute must be followed or a confidential agreement is unavailable. BME Rule 295 requires both doctors and P.A.s to report any condition which impacts their ability to perform a medical service with reasonable skill and safety within 30 days of the date that the condition begins to impact their practice. The Rule requires that licensees notify the Board, in writing, of their diagnosis, date of diagnosis, treatment plan, treating physician and whether they are undergoing treatment with C.P.H.P. Rule 295 imposes an obligation on the licensee to notify the Board of any changes in condition (positive or negative) within 30 days as well. Consequently, it is important that all licensees familiarize themselves with the new Rule, which can be viewed here.
Importantly, the “safe harbor” provisions available through C.P.H.P. are still available. Thus, if a physician has a disability, he can voluntarily seek assistance through CPHP, and continue to practice. If the physician remains in compliance with any conditions or restrictions put in place by CPHP, the doctor or P.A. does not need to report the condition to the Board. However, if the Board learns of the condition, the licensee may be subject to discipline. The new statute and rule are step in the right direction, and may permit responsible physicians and P.A.s who become disabled to continue their careers unburdened by public disciplinary actions.