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12-36-106. Practice of medicine defined - exemptions from licensing requirements - unauthorized practice by physician assistants and anesthesiologist assistants - penalties - rules - repeal.

Statute text

(1) For the purpose of this article, "practice of medicine" means:

(a) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever;

(b) Suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person;

(c) The maintenance of an office or other place for the purpose of examining or treating persons afflicted with disease, injury, or defect of body or mind;

(d) Using the title M.D., D.O., physician, surgeon, or any word or abbreviation to indicate or induce others to believe that one is licensed to practice medicine in this state and engaged in the diagnosis or treatment of persons afflicted with disease, injury, or defect of body or mind, except as otherwise expressly permitted by the laws of this state enacted relating to the practice of any limited field of the healing arts;

(e) Performing any kind of surgical operation upon a human being;

(f) The practice of midwifery, except:

(I) Services rendered by certified nurse-midwives properly licensed and practicing in accordance with the provisions of article 38 of this title; or

(II) (A) Services rendered by a person properly registered as a direct-entry midwife and practicing in accordance with article 37 of this title.

(B) This subparagraph (II) is repealed, effective September 1, 2023.

(g) The delivery of telemedicine. Nothing in this paragraph (g) authorizes physicians to deliver services outside their scope of practice or limits the delivery of health services by other licensed professionals, within the professional's scope of practice, using advanced technology, including, but not limited to, interactive audio, interactive video, or interactive data communication.

(2) If a person who does not possess and has not filed a license to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant in this state, as provided in this article, and who is not exempted from the licensing requirements under this article, performs any of the acts that constitute the practice of medicine as defined in this section, the person shall be deemed to be practicing medicine, practicing as a physician assistant, or practicing as an anesthesiologist assistant in violation of this article.

(3) A person may engage in, and shall not be required to obtain a license or a physician training license under this article with respect to, any of the following acts:

(a) The gratuitous rendering of services in cases of emergency;

(b) The occasional rendering of services in this state by a physician if the physician:

(I) Is licensed and lawfully practicing medicine in another state or territory of the United States without restrictions or conditions on the physician's license;

(II) Does not have any established or regularly used medical staff membership or clinical privileges in this state;

(III) Is not party to any contract, agreement, or understanding to provide services in this state on a regular or routine basis;

(IV) Does not maintain an office or other place for the rendering of such services;

(V) Has medical liability insurance coverage in the amounts required pursuant to section 13-64-302, C.R.S., for the services rendered in this state; and

(VI) Limits the services provided in this state to an occasional case or consultation;

(c) The practice of dentistry under the conditions and limitations defined by the laws of this state;

(d) The practice of podiatry under the conditions and limitations defined by the laws of this state;

(e) The practice of optometry under the conditions and limitations defined by the laws of this state;

(f) The practice of chiropractic under the conditions and limitations defined by the laws of this state;

(g) The practice of religious worship;

(h) The practice of Christian Science, with or without compensation;

(i) The performance by commissioned medical officers of the armed forces of the United States of America or of the United States public health service or of the United States veterans administration of their lawful duties in this state as such officers;

(j) The rendering of nursing services and delegated medical functions by registered or other nurses in the lawful discharge of their duties as such;

(k) The rendering of services by students currently enrolled in an approved medical college;

(l) The rendering of services, other than the prescribing of drugs, by persons qualified by experience, education, or training, under the personal and responsible direction and supervision of a person licensed under the laws of this state to practice medicine, but nothing in this exemption shall be deemed to extend or limit the scope of any license, and this exemption shall not apply to persons otherwise qualified to practice medicine but not licensed to so practice in this state;

(m) The practice by persons licensed or registered under any law of this state to practice a limited field of the healing arts not specifically designated in this section, under the conditions and limitations defined by such law;

(n) (Deleted by amendment, L. 2000, p. 30, 1, effective March 10, 2000.)

(o) (I) The administration and monitoring of medications in facilities as provided in part 3 of article 1.5 of title 25, C.R.S.;

(II) Repealed.

(p) The rendering of acupuncture services subject to the conditions and limitations provided in article 29.5 of this title;

(q) (I) The administration of nutrition or fluids through gastrostomy tubes as provided in sections 25.5-10-204 (2) (j) and 27-10.5-103 (2) (i), C.R.S., as a part of residential or day program services provided through service agencies approved by the department of health care policy and financing pursuant to section 25.5-10-208, C.R.S.;

(II) Repealed.

(r) (I) The administration of topical and aerosol medications within the scope of physical therapy practice as provided in section 12-41-113 (2);

(II) The performance of wound debridement under a physician's order within the scope of physical therapy practice as provided in section 12-41-113 (3);

(s) The rendering of services by an athletic trainer subject to the conditions and limitations provided in article 29.7 of this title;

(t) (I) The rendering of prescriptions by an advanced practice nurse pursuant to section 12-38-111.6.

(II) Repealed.

(II.5) On or after July 1, 2010, a physician who serves as a preceptor or mentor to an advanced practice nurse pursuant to sections 12-36-106.4 and 12-38-111.6 (4.5) shall have a license in good standing without disciplinary sanctions to practice medicine in Colorado and an unrestricted registration by the drug enforcement administration for the same schedules as the collaborating advanced practice nurse.

(III) Repealed.

(IV) It is unlawful and a violation of this article for any person, corporation, or other entity to require payment or employment as a condition of entering into a mentorship relationship with the advanced practice nurse pursuant to sections 12-36-106.4 and 12-38-111.6 (4.5), but the mentor may request reimbursement of reasonable expenses and time spent as a result of the mentorship relationship.

(u) (I) The provision, to a treating physician licensed in this state, of the results of laboratory tests, excluding histopathology tests and cytology tests, performed in a laboratory certified under the federal "Clinical Laboratories Improvement Act of 1967", as amended, 42 U.S.C. sec. 263a, to perform high complexity testing, as such term is used in 42 CFR 493.1701 and any related or successor provision;

(II) The provision, to a pathologist licensed in this state, of the results of histopathology tests and cytology tests performed in a laboratory certified under the federal "Clinical Laboratories Improvement Act of 1967", as amended, 42 U.S.C. sec. 263a, to perform high complexity testing, as such term is used in 42 CFR 493.1701 and any related or successor provision;

(v) The rendering of services by any person serving an approved internship, residency, or fellowship as defined by this article for an aggregate period not to exceed sixty days;

(w) A physician lawfully practicing medicine in another state or territory providing medical services to athletes or team personnel registered to train at the United States olympic training center at Colorado Springs or providing medical services at an event in this state sanctioned by the United States olympic committee. The physician's medical practice shall be contingent upon the requirements and approvals of the United States olympic committee and shall not exceed ninety days per calendar year.

(x) Repealed.

(y) The rendering of services by an emergency medical service provider certified under section 25-3.5-203, C.R.S., if the services rendered are consistent with rules adopted by the executive director or chief medical officer, as applicable, under section 25-3.5-206, C.R.S., defining the duties and functions of emergency medical service providers;

(z) Rendering complementary and alternative health care services consistent with section 6-1-724, C.R.S.;

(aa) Practicing as a medical director pursuant to the "Recognition of Emergency Medical Services Personnel Licensure Interstate Compact Act", part 35 of article 60 of title 24, C.R.S., so long as the person is licensed in good standing in a state that has enacted and is a member of the compact.

(3.2) Nothing in this section shall be construed to prohibit patient consultation between a practicing physician licensed in Colorado and a practicing physician licensed in another state or jurisdiction.

(3.5) (Deleted by amendment, L. 2009, (SB 09-026), ch. 373, p. 2031, 2, effective July 1, 2009.)

(4) All licensees designated or referred to in subsection (3) of this section, who are licensed to practice a limited field of the healing arts, shall confine themselves strictly to the field for which they are licensed and to the scope of their respective licenses, and shall not use any title, word, or abbreviation mentioned in paragraph (d) of subsection (1) of this section, except to the extent and under the conditions expressly permitted by the law under which they are licensed.

(5) (a) A person licensed under the laws of this state to practice medicine may delegate to a physician assistant licensed by the board pursuant to section 12-36-107.4 the authority to perform acts that constitute the practice of medicine and acts that physicians are authorized by law to perform to the extent and in the manner authorized by rules promulgated by the board, including the authority to prescribe medication, including controlled substances, and dispense only the drugs designated by the board. Such acts must be consistent with sound medical practice. Each prescription for a controlled substance, as defined in section 18-18-102 (5), C.R.S., issued by a physician assistant licensed by the board shall be imprinted with the name of the physician assistant's supervising physician. For all other prescriptions issued by a physician assistant, the name and address of the health facility and, if the health facility is a multi-speciality organization, the name and address of the speciality clinic within the health facility where the physician assistant is practicing must be imprinted on the prescription. Nothing in this subsection (5) limits the ability of otherwise licensed health personnel to perform delegated acts. The dispensing of prescription medication by a physician assistant is subject to section 12-42.5-118 (6).

(b) (I) If the authority to perform an act is delegated pursuant to paragraph (a) of this subsection (5), the act shall not be performed except under the personal and responsible direction and supervision of a person licensed under the laws of this state to practice medicine. A licensed physician may be responsible for the direction and supervision of up to four physician assistants at any one time, and may be responsible for the direction and supervision of more than four physician assistants upon receiving specific approval from the board. The board, by rule, may define what constitutes appropriate direction and supervision of a physician assistant.

(II) For purposes of this subsection (5), "personal and responsible direction and supervision" means that the direction and supervision of a physician assistant is personally rendered by a licensed physician practicing in the state of Colorado and is not rendered through intermediaries. The extent of direction and supervision shall be determined by rules promulgated by the board and as otherwise provided in this paragraph (b); except that, when a physician assistant is performing a delegated medical function in an acute care hospital, the board shall allow supervision and direction to be performed without the physical presence of the physician during the time the delegated medical functions are being implemented if:

(A) Such medical functions are performed where the supervising physician regularly practices or in a designated health manpower shortage area;

(B) The licensed supervising physician reviews the quality of medical services rendered by the physician assistant by reviewing the medical records to assure compliance with the physicians' directions; and

(C) The performance of the delegated medical function otherwise complies with the board's regulations and any restrictions and protocols of the licensed supervising physician and hospital.

(III) Repealed.

(c) to (f) (Deleted by amendment, L. 2010, (HB 10-1260), ch. 403, p. 1966, 35, effective July 1, 2010.)

(g) Pursuant to section 12-36-129 (6), the board may apply for an injunction to enjoin any person from performing delegated medical acts that are in violation of this section or of any rules promulgated by the board.

(h) This subsection (5) shall not apply to any person who performs delegated medical tasks within the scope of the exemption contained in paragraph (l) of subsection (3) of this section.

(i) and (j) (Deleted by amendment, L. 2010, (HB 10-1260), ch. 403, p. 1966, 35, effective July 1, 2010.)

(k) Repealed. / (Deleted by amendment, L. 2010, (HB 10-1260), ch. 403, p. 1966, 35, effective July 1, 2010.)

(6) Repealed.

(7) (a) A physician licensed in this state that practices as an anesthesiologist may delegate tasks constituting the practice of medicine to an anesthesiologist assistant licensed pursuant to section 12-36-107.3 who has been educated and trained in accordance with rules promulgated by the board. The delegated medical tasks referred to in this paragraph (a) are limited to the medical functions that constitute the delivery or provision of anesthesia services as practiced by the supervising physician.

(b) An anesthesiologist assistant shall perform delegated medical tasks only under the direct supervision of a physician who practices as an anesthesiologist. A patient or the patient's representative shall be advised if an anesthesiologist assistant is involved in the care of a patient. Unless approved by the board, a supervising physician shall not concurrently supervise more than three anesthesiologist assistants; except that the board may, by rule, allow an anesthesiologist to supervise up to four anesthesiologist assistants on and after July 1, 2016. The board may consider information from anesthesiologists, anesthesiologist assistants, patients, and other sources when considering a ratio change of supervision of anesthesiologist assistants. Direct supervision of anesthesiologist assistants may be transferred between anesthesiologists of the same group or practice in accordance with generally accepted standards of care.

(c) Nothing in this subsection (7) affects the practice of dentists and dental assistants practicing pursuant to article 35 of this title.

History

Source: L. 51: p. 565, 6. CSA: C. 109, 33(6). CRS 53: 91-1-6. C.R.S. 1963: 91-1-6. L. 73: p. 1025, 1. L. 77: (1)(f) amended and (3)(n) added, p. 684, 1, 2, effective May 23. L. 79: (1)(d) and (4) amended, p. 508, 4, effective July 1. L. 80: (1)(f) and (3)(n) amended, p. 494, 2, effective July 1. L. 83: (3)(l) amended and (5) added, p. 537, 1, effective July 1. L. 84: (5)(a) amended, p. 419, 1, effective March 16. L. 85: (5)(a), (5)(c)(III), (5)(d), (5)(i), and (5)(j) amended and (5)(c)(IV) added, p. 518, 3, effective July 1. L. 86: (3)(m) amended, p. 653, 30, effective July 1; (5)(d) R&RE and (5)(e) and (5)(j) amended, pp. 638, 639, 7, 8, effective July 1. L. 88: (3)(o) added, p. 1001, 4, effective July 1. L. 89: (3)(p) added, p. 661, 2, effective June 6. L. 90: (3)(j) amended, p. 819, 2. L. 91: (3)(q) added, p. 1162, 2, effective March 29; (3)(o)(II) amended, p. 929, 3, effective April 1; (3)(s) and (3.5) added, p. 1640, 1, effective May 7; (3)(r) added, p. 1667, 3, effective July 1. L. 92: (5)(b) amended, p. 2055, 2, effective April 23; (3)(q)(II) repealed, p. 2010, 3, effective June 2; (3)(o) amended, p. 1148, 2, effective July 1. L. 93: (1)(f) amended, p. 1911, 1, effective July 1. L. 94: (3)(q)(I) amended, p. 2637, 78, effective July 1. L. 95: (3)(t) added, p. 1087, 11, and (3.5)(d)(V), (5)(a), (5)(e), and (5)(j) amended, p. 1057, 2, effective July 1. L. 96: (1)(f)(II) amended, p. 400, 10, effective April 17; (3)(o)(II) amended, p. 797, 8, effective May 23; (3.5)(f) amended, p. 1226, 36, effective August 7. L. 98: (1)(a) and (3)(b) amended and (3)(u) and (3.2) added, pp. 1104, 1105, 1, 2, effective July 1; (3)(o) amended, p. 542, 2, effective July 1. L. 2000: (1)(f) and (3)(n) amended, p. 30, 1, effective March 10. L. 2001: (1)(f)(II)(B) amended, p. 1258, 1, effective June 5; (3)(r) amended, p. 1256, 18, effective July 1; (5)(a), (5)(b)(III), IP(5)(c), (5)(d), (5)(e), (5)(f), and (5)(i) amended and (6) added, p. 176, 2, effective August 8; (1)(g) added, p. 1162, 7, effective January 1, 2002. L. 2002: IP(3) and (3)(k) amended and (3)(v) added, p. 545, 1, effective August 7. L. 2003: (3)(o)(I) amended, p. 701, 11, effective July 1. L. 2006: (5)(e) amended, p. 1492, 19, effective June 1; (1)(g) amended, p. 1546, 2, effective July 1; (5)(b)(III) repealed, p. 795, 27, effective July 1; (5)(k) added, p. 87, 26, effective August 7. L. 2009: (3)(o)(II) repealed, (SB 09-128), ch. 365, p. 1914, 4, effective July 1; (3)(s) and (3.5) amended, (SB 09-026), ch. 373, p. 2031, 2, effective July 1; (3)(t)(II) and (3)(t)(III) amended and (3)(t)(II.5) and (3)(t)(IV) added, (SB 09-239), ch. 401, p. 2181, 25, effective July 1. L. 2010: (3)(w) and (3)(x) added, (HB 10-1128), ch. 172, p. 612, 9, effective April 29; (1)(b), (1)(g), (2), IP(3), (3)(b), (5)(a), (5)(b)(I), IP(5)(b)(II), (5)(b)(II)(B), (5)(c) to (5)(g), (5)(i), (5)(j), and (5)(k) amended, (3)(x), (5)(k), and (6) repealed, and (3)(y) and (3)(z) added, (HB 10-1260), ch. 403, pp. 1957, 1966, 1959, 1974, 1948, 25, 35, 26, 44, 13, effective July 1. L. 2011: (5)(a) amended, (HB 11-1303), ch. 264, p. 1150, 12, effective August 10. L. 2012: IP(3) and (3)(y) amended, (HB 12-1059), ch. 271, p. 1432, 7, effective July 1; (5)(a) amended, (HB 12-1311), ch. 281, p. 1611, 15, effective July 1; (2) amended and (7) added, (HB 12-1332), ch. 238, p. 1052, 3, effective August 8. L. 2013: (3)(z) added, (SB 13-215), ch. 399, p. 2335, 3, effective June 5; (3)(q)(I) amended, (HB 13-1314), ch. 323, p.1801, 19, effective March 1, 2014. L. 2015: (3)(aa) added, (HB 15-1015), ch. 171, p. 540, 3, effective August 5. L. 2016: (1)(f)(II) RC&RE, (HB 16-1360), ch. 350, p. 1427, 10, effective August 10; (5)(a) amended, (SB 16-158), ch. 204, p. 724, 8, effective August 10.

Annotations

Editor's note: (1) Subsection (5)(c) was relocated to 12-36-107.4 (1), subsection (5)(d) was relocated to 12-36-107.4 (2), subsection (5)(e) was relocated to 12-36-107.4 (4), subsection (5)(f) was relocated to 12-36-107.4 (5), subsection (5)(i) was relocated to 12-36-107.4 (6), and subsection (6) was relocated to 12-36-102.5 (7) in 2010.

(2) Amendments to subsection (5)(k) by sections 35 and 44 of House Bill 10-1260 were harmonized.

(3) Subsection (3)(z) was lettered as (3)(w) in House Bill 10-1260, but has been relettered on revision since it is identical to section 12-36-106 (3)(w) as added by House Bill 10-1128.

(4) Subsection (3)(t)(II) provided for the repeal of subsection (3)(t)(II), effective July 1, 2010. (See L. 2009, p. 2181.)

(5) Subsection (3)(t)(III)(D) provided for the repeal of subsection (3)(t)(III), effective July 1, 2010. (See L. 2009, p. 2181.)

(6) Subsection (1)(f)(II)(B) provided for the repeal of subsection (1)(f)(II), effective July 1, 2011. (See L. 2001, p. 1258.)

Annotations

Cross references: (1) For the legislative declaration contained in the 1996 act amending subsection (3.5)(f), see section 1 of chapter 237, Session Laws of Colorado 1996. For the legislative declaration contained in the 2001 act enacting subsection (1)(g), see section 1 of chapter 300, Session Laws of Colorado 2001.

(2) For the legislative declaration in SB 16-158, see section 1 of chapter 204, Session Laws of Colorado 2016.

Annotations

 

ANNOTATION

Annotations

Law reviews. For comment on Moon v. Mercy Hosp., appearing below, see 35 U. Colo. L. Rev. 612 (1963). For article, "The Physician-Patient Privilege in Colorado", see 37 U. Colo. L. Rev. 349 (1965). For article, "Telemedicine and Licensing: Effect of the Current Regime", see 30 Colo. Law. 71 (May 2001). For article, "Who is Helping the Doctor: Physicians' Delegation of Medical Services", see 32 Colo. Law. 81 (December 2003).

Annotator's note. Since 12-36-106 is similar to repealed CSA, C. 109, 14, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Midwives' equal protection rights are not violated by section because the prohibition of lay midwifery bears a rational relationship to the state's legitimate interest in protecting the health of the pregnant woman and her child. People v. Rosburg, 805 P.2d 432 (Colo. 1991).

Subsection prohibiting practice by lay midwives is not unconstitutionally vague. People v. Rosburg, 805 P.2d 432 (Colo. 1991).

Term "practice of midwifery" is not unconstitutionally vague on its face. People v. Rosburg, 805 P.2d 432 (Colo. 1991).

The state has the right to determine and define what constitutes the practice of medicine. Smith v. People, 51 Colo. 270, 117 P. 612 (1911), citing Harding v. People, 10 Colo. 387, 15 P. 727 (1887).

This section defines the phrase, "practice of medicine", in great detail. Moon v. Mercy Hosp., 150 Colo. 430, 373 P.2d 944 (1962); Colo. Chiropractic Ass'n v. State, 171 Colo. 395, 467 P.2d 795 (1970).

Record-keeping is part of the practice of medicine. State Bd. of Med. Exam'rs v. McCroskey, 940 P.2d 1044 (Colo. App. 1996).

"Practice of medicine" is the closest term to "medical attendance" to be found in the articles relating to the healing arts. Colo. Chiropractic Ass'n v. State, 171 Colo. 395, 467 P.2d 795 (1970).

The practice of medicine has been judicially defined as judging the nature, character, and symptoms of the disease, determining the proper remedy for the disease, and giving or prescribing the application of the remedy to the disease. Hurley v. People, 99 Colo. 510, 63 P.2d 1227 (1936).

An exception to the practice of medicine, as defined, is made for the practice of chiropractic, as well as other limited fields of the healing arts, under conditions and limitations specifically defined in the statutes. Colo. Chiropractic Ass'n v. State, 171 Colo. 395, 467 P.2d 795 (1970).

Although this section defines general aspects of the practice of medicine and provides significant guidance, it remains the Board's responsibility to determine whether specific acts fall within the broad scope of medical practice for the purpose of discipline under 12-36-117. State Bd. of Med. Exam'rs v. McCroskey, 940 P.2d 1044 (Colo. App. 1996).

Statute gives adequate warning of proscribed activity and therefore is not impermissibly vague. People v. Jeffers, 690 P.2d 194 (Colo. 1984).

The meaning of subsection (1)(b) encompasses a continuing process of treatment and healing, not just isolated moments or acts within a course of treatment. People ex rel. McFarlane v. Pfeiffer, 725 P.2d 19 (Colo. App. 1986).

Respondent's advertising, in which he holds himself out as one capable of treating the medical condition of obesity and recommends Prozac to all potential patients as a form of treatment for that condition, falls within the definition of the practice of medicine. State Bd. of Med. Exam'rs v. Thompson, 944 P.2d 547 (Colo. App. 1996).

Physician assistant may render medical opinion in workers' compensation hearing on question of temporary disability. Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

The general assembly made clear its intention to restrict the practice of those licensed to practice in a limited field of the healing arts. Colo. Chiropractic Ass'n v. State, 171 Colo. 395, 467 P.2d 795 (1970).

The courses of study of the several limited branches of the healing arts are not determinative of the scope of practice permitted under any given license. Colo. Chiropractic Ass'n v. State, 171 Colo. 395, 467 P.2d 795 (1970).

For discussion of an earlier statute, see Higgins v. State Bd. of Med. Exam'rs, 46 Colo. 476, 104 P. 953 (1909).

Craniosacral manipulation for the relief of pain from temporomandibular joint dysfunction constitutes the practice of dentistry and is therefore exempt from the medical licensing requirements. Colo. Bd. of Med. Exam'rs v. Raemer, 794 P.2d 1075 (Colo. App. 1990), appeal dismissed, 801 P.2d 536 (Colo. 1990).