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COLORADO
Midwives Statute
12-37-101.
Scope of article - exemptions.
12-37-102. Definitions.
12-37-103. Requirement for
registration with the division of registrations - annual fee - grounds
for revocation.
12-37-104. Mandatory
disclosure of information to patients.
12-37-105. Prohibited acts -
practice standards - informed consent - emergency plan - risk
assessment - referral.
12-37-106. Director - powers
and duties.
12-37-107. Disciplinary action
authorized - grounds for discipline.
12-37-108. Criminal penalties.
12-37-109. Assumption of risk
- no vicarious liability - legislative declaration.
12-37-109.5. Immunity.
12-37-109.7. Confidential
files.
12-37-110. Repeal of article.
12-37-101.
Scope of article - exemptions. (1)
The provisions of this article shall apply only to direct-entry
midwives, also known as "lay" midwives, and shall not apply
to those persons who are otherwise licensed by the state of Colorado
under this title if the practice of midwifery is within the scope of
such licensure. No person who is a licensed health care provider under
any other article of this title shall simultaneously be so licensed
and also be registered under this article, but a health care provider
who is registered under article 29.5 of this title may also be
registered under this article. A licensed health care provider who
holds a license in good standing may relinquish said license and
subsequently be registered under this article. It is the intent of the
general assembly that health care be provided pursuant to this article
as an alternative to traditional licensed health care and not for the
purpose of enabling providers of traditional licensed health care to
circumvent the regulatory oversight to which they are otherwise
subject under any other article of this title.
(2) Nothing in this article
shall be construed to prohibit, or to require registration under this
article, with regard to:
(a) The gratuitous rendering
of services in an emergency;
(b) The rendering of services
by a physician licensed pursuant to article 36 of this title or
otherwise legally authorized to practice in this state;
(c) The rendering of services
by certified nurse-midwives properly licensed and practicing in
accordance with the provisions of article 38 of this title; or
(d) The practice by persons
licensed or registered under any law of this state, in accordance with
such law, to practice a limited field of the healing arts not
specifically designated in this section.
12-37-102.
Definitions. As
used in this article, unless the context otherwise requires:
(1) "Direct-entry
midwife" means a person who practices traditional, direct-entry
midwifery as defined in subsection (2) of this section for
compensation.
(2) "Direct-entry
midwifery" or "practice of direct-entry midwifery"
means the advising, attending, or assisting of a woman during
pregnancy, labor and natural childbirth at home, and during the
postpartum period in accordance with this article.
(3) "Director" means
the director of the division of registrations in the department of
regulatory agencies.
(4) "Natural
childbirth" means the birth of a child without the use of
prescription drugs, instruments, or surgical procedures.
(5) "Postpartum
period" means the period of six weeks after birth.
(6) "Registrant"
means a direct-entry midwife registered pursuant to section 12-37-103.
12-37-103.
Requirement for registration with the division of registrations -
annual fee - grounds for revocation. (1)
Every direct-entry midwife shall register with the division of
registrations by providing an application to the director in the form
the director shall require. Said application shall include the
information specified in section 12-37-104.
(2) Any changes in the
information required by subsection (1) of this section shall be
reported within thirty days of said change to the division of
registrations in the manner prescribed by the director.
(3) Every applicant for
registration shall pay an annual registration fee to be established by
the director in the manner authorized by section 24-34-105, C.R.S.
(4) (Deleted by amendment, L.
96, p. 395, § 2, effective April 17, 1996.)
(4.5) A person who has had his
or her registration revoked shall not apply for reregistration until
at least two years have elapsed since the date of the revocation.
(5) To qualify to register, a
direct-entry midwife shall have successfully completed an examination
evaluated and approved by the director as an appropriate test to
measure competency in the practice of direct-entry midwifery, which
examination shall have been developed by a person or entity other than
the director or the division and the acquisition of which shall
require no expenditure of state funds. The national registry
examination administered by the midwives' alliance of North America,
incorporated, shall be among those evaluated by the director. The
director is authorized to approve any existing test meeting all the
criteria set forth in this subsection (5). In addition to successfully
completing such examination, a direct-entry midwife shall be deemed
qualified to register if such person has:
(a) Attained the age of
nineteen years;
(b) Earned at least a high
school diploma or the equivalent;
(c) Successfully completed
training approved by the director in:
(I) The provision of care
during labor and delivery and during the antepartum and postpartum
periods;
(II) Parenting education for
prepared childbirth;
(III) Aseptic techniques and
universal precautions;
(IV) Management of birth and
immediate care of the mother and the newborn;
(V) Recognition of early signs
of possible abnormalities;
(VI) Recognition and
management of emergency situations;
(VII) Special requirements for
home birth;
(VIII) Recognition of
communicable diseases affecting the pregnancy, birth, newborn, and
postpartum periods; and
(IX) Recognition of the signs
and symptoms of increased risk of medical, obstetric, or neonatal
complications or problems as set forth in section 12-37-105 (3).
(d) Acquired practical
experience in a home setting, including, at a minimum, apprenticeship
providing experience with the conduct of one hundred prenatal
examinations on no fewer than thirty different women and observation
of thirty births;
(e) Following completion of
the education, training, and experience enumerated in paragraphs (a)
to (d) of this subsection (5), supervised participation as the primary
birth attendant, including rendering care from the prenatal period
through the postpartum period, in connection with no less than thirty
births; and
(f) Filed documentation with
the director that the direct-entry midwife is currently certified by
the American heart association or the American red cross to perform
adult and infant cardiopulmonary resuscitation ("CPR").
12-37-104.
Mandatory disclosure of information to patients. (1)
Every direct-entry midwife shall provide the following information in
writing to each patient during the initial patient contact:
(a) The name, business
address, and business phone number of the direct-entry midwife;
(b) A listing of the
direct-entry midwife's education, experience, degrees, membership in
any professional organization whose membership includes not less than
one-third of all registrants, certificates or credentials related to
direct-entry midwifery awarded by any such organization, and the
length of time and number of contact hours required to obtain said
degrees, certificates, or credentials;
(c) A statement indicating
whether or not the direct-entry midwife is covered under a policy of
liability insurance for the practice of direct-entry midwifery;
(d) A listing of any license,
certificate, or registration in the health care field previously held
by the direct-entry midwife and revoked by any local, state, or
national health care agency;
(e) A statement that the
practice of direct-entry midwifery is regulated by the department of
regulatory agencies. The statement shall provide the address and
telephone number of the complaints and investigations section of the
division of registrations in the department of regulatory agencies and
shall state that violation of the provisions of this article may
result in revocation of registration and of the authority to practice
direct-entry midwifery in the state of Colorado; and
(f) A copy of the emergency
plan as provided in section 12-37-105 (6).
(2) Any changes in the
information required by subsection (1) of this section shall be
reflected in the mandatory disclosure within five days of the said
change.
(3) For purposes of
registration under this article, no credentials, licensure, or
certification issued by any other state shall constitute or be deemed
to meet the requirements of this article, and to that extent there
shall be no reciprocity with other states.
12-37-105.
Prohibited acts - practice standards - informed consent - emergency
plan - risk assessment - referral. (1)
A direct-entry midwife shall not dispense or administer any medication
or drugs except for required eye prophylactic therapy.
(2) A direct-entry midwife
shall not perform any operative or surgical procedure.
(3) A direct-entry midwife
shall not provide care to a pregnant woman who, according to generally
accepted medical standards, exhibits signs or symptoms of increased
risk of medical or obstetric or neonatal complications or problems
during the completion of her pregnancy, labor, delivery, or the
postpartum period. Such conditions include but are not limited to
signs or symptoms of diabetes, multiple gestation, hypertensive
disorder, or abnormal presentation of the fetus.
(4) A direct-entry midwife
shall not provide care to a pregnant woman who, according to generally
accepted medical standards, exhibits signs or symptoms of increased
risk that her child may develop complications or problems during the
first six weeks of life.
(5) (a) A direct-entry midwife
shall keep appropriate records of midwifery-related activity,
including but not limited to the following:
(I) The direct-entry midwife
shall complete and file a birth certificate for every delivery in
accordance with section 25-2-112, C.R.S.
(II) The direct-entry midwife
shall complete and maintain appropriate client records for every
client.
(III) Prior to accepting a
client for care, the direct-entry midwife shall obtain the client's
informed consent, which shall be evidenced by a written statement in a
form prescribed by the director and signed by both the direct-entry
midwife and the client. The form shall certify that full disclosure
has been made and acknowledged by the client as to each of the
following items, with the client's acknowledgment evidenced by a
separate signature or initials adjacent to each item in addition to
the client's signature at the end of the form:
(A) The direct-entry midwife's
educational background and training;
(B) The nature and scope of
the care to be given, including the possibility of and procedure for
transport of the client to a hospital and transferral of care
prenatally;
(C) The available alternatives
to direct-entry midwifery care;
(D) A description of the risks
of birth, including but not limited to those that are different from
those of hospital birth and including but not limited to those
conditions that may arise during delivery;
(E) A statement indicating
whether or not the direct-entry midwife is covered under a policy of
liability insurance for the practice of direct-entry midwifery; and
(F) A statement informing the
client that, in the event subsequent care is required resulting from
the acts or omissions of the direct-entry midwife, any physician,
nurse, prehospital emergency personnel, and health care institution
rendering such care shall be held only to a standard of gross
negligence or willful and wanton conduct.
(IV) Until such time as the
liability insurance required pursuant to section 12-37-109 (3) is
available, each direct-entry midwife shall, prior to accepting a
client for care, provide such client with a disclosure statement
indicating that the midwife does not have liability insurance. Such
statement shall be printed in at least twelve-point bold-faced type
and shall be read to the client in a language she understands. Each
client shall sign the disclosure statement acknowledging that she
understands the effect of its provisions. A copy of the signed
disclosure statement shall be given to the client.
(b) As used in this subsection
(5), "full disclosure" includes reading the informed consent
form to the client, in a language understood by the client, and
answering any relevant questions.
(6) A direct-entry midwife
shall prepare a plan and procedure, in a form prescribed by the
director, for emergency situations which shall include, but not be
limited to, situations in which the time required for transportation
to the nearest facility capable of providing appropriate treatment
exceeds limits established by the director by rule. A copy of such
plan shall be given to each client as part of the informed consent
required by subsection (5) of this section.
(7) A direct-entry midwife
shall prepare and transmit appropriate specimens for newborn screening
in accordance with section 25-4-1004, C.R.S.
(8) A direct-entry midwife
shall ensure that appropriate laboratory testing, as determined by the
director, is completed for each pregnant woman in such direct-entry
midwife's care.
(9) A direct-entry midwife
shall provide eye prophylactic therapy to all newborn children in such
direct-entry midwife's care in accordance with section 25-4-303, C.R.S.
(10) A direct-entry midwife
shall be knowledgeable and skilled in aseptic procedures and the use
of universal precautions and shall use them with every client.
(11) To assure that proper
risk assessment is completed and that clients who are inappropriate
for direct-entry midwifery are referred to other health care
providers, the director shall establish, by rule, a risk assessment
procedure to be followed by a direct-entry midwife for each client and
standards for appropriate referral. Such assessment shall be a part of
each client's record as required in section 12-37-105 (5) (a) (II).
(12) At the time of
re-registration, each registrant shall submit the following data on a
form prescribed by the director:
(a) The number of women to
whom care was provided since the previous registration;
(b) The number of deliveries
performed;
(c) The apgar scores of
delivered infants, in groupings established by the director;
(d) The number of prenatal
transfers;
(e) The number of transfers
during labor, delivery, and immediately following birth;
(f) Any perinatal deaths; and
(g) Other morbidity statistics
as required by the director.
(13) It shall be lawful for a
registered direct-entry midwife to purchase, possess, carry, and
administer oxygen. The department of regulatory agencies shall
promulgate rules concerning minimum training requirements for
direct-entry midwives with respect to the safe administration of
oxygen to patients. Each direct-entry midwife registered pursuant to
this article shall complete the minimum training requirements and
submit proof of having completed such requirements to the director
before administering oxygen to any patient.
12-37-106.
Director - powers and duties. (1)
In addition to any other powers and duties conferred on the director
by law, the director has the following powers and duties:
(a) To adopt such rules and
regulations as may be necessary to carry out the provisions of this
article;
(b) To establish the fees for
registration and renewal of registration in the manner authorized by
section 24-34-105, C.R.S.;
(c) To prepare or adopt
suitable education standards for applicants and to adopt a
registration examination;
(d) To accept applications for
registration which meet the requirements set forth in this article,
and to collect the annual registration fees authorized by this
article;
(e) To seek, through the
office of the attorney general, an injunction in any court of
competent jurisdiction to enjoin any person from committing any act
prohibited by this article. When seeking an injunction under this
paragraph (e), the director shall not be required to allege or prove
the inadequacy of any remedy at law or that substantial or irreparable
damage is likely to result from a continued violation of this article.
Source:
L. 93: Entire article RC&RE, p. 1918, § 2, effective July
1. L. 96: (1)(c) amended, p. 397, § 5, effective April 17.
12-37-107.
Disciplinary action authorized - grounds for discipline. (1)
If a direct-entry midwife has violated any of the provisions of
section 12-37-103, 12-37-104, 12-37-105, or 12-37-109 (3), the
director may deny, revoke, or suspend any registration, issue a letter
of admonition to a registrant, place a registrant on probation, or
apply for a temporary or permanent injunction against a direct-entry
midwife, through the attorney general, in any court of competent
jurisdiction, enjoining such direct-entry midwife from practicing
midwifery or committing any violation of the provisions of the said
section 12-37-103, 12-37-104, 12-37-105, or 12-37-109 (3). Such
injunctive proceedings shall be in addition to and not in lieu of any
other penalties or remedies provided in this article.
(2) As an alternative to or in
addition to a suspension or revocation of registration under section
12-37-103 (4), the director may assess a civil penalty in the form of
a fine, not to exceed five thousand dollars, for any act or omission
enumerated in the said section.
(3) The director has the power
to deny, revoke, or suspend any registration or to issue a letter of
admonition or place a registrant on probation for any of the following
acts or omissions:
(a) Any violation of the
provisions of section 12-37-103, 12-37-104, 12-37-105, or 12-37-109
(3) or any rule promulgated pursuant to section 12-37-106 (1) (a);
(b) Failing to provide any
information required pursuant to or to pay any fee assessed in
accordance with section 12-37-103, or providing false, deceptive, or
misleading information to the division of registrations that the
direct-entry midwife knew or should reasonably have known was false,
deceptive, or misleading;
(c) Engaging in any act or
omission that does not meet generally accepted standards of safe care
for women and infants, whether or not actual injury to a patient is
established;
(d) Habitual intemperance with
regard to or excessive use of a habit-forming drug, as defined in
section 12-22-102 (13), a controlled substance, as defined in section
12-22-303 (7), or an alcoholic beverage;
(e) Has procured or attempted
to procure a registration in this or any other state or jurisdiction
by fraud, deceit, misrepresentation, misleading omission, or material
misstatement of fact;
(f) Has had a license or
registration to practice direct-entry midwifery or any other health
care occupation suspended or revoked in any jurisdiction. A certified
copy of the order of suspension or revocation shall be prima facie
evidence of such suspension or revocation.
(g) Violation of any law or
regulation governing the practice of direct-entry midwifery in another
state or jurisdiction. A plea of nolo contendere or its equivalent
accepted by any state agency of another state or jurisdiction may be
considered to be the same as a finding of violation for purposes of a
proceeding under this article.
(h) Has falsified, failed to
make essential entries in, or in a negligent manner made incorrect
entries in client records;
(i) Has been convicted of a
felony or has had accepted by a court a plea of guilty or nolo
contendere to a felony. A certified copy of the judgment of a court of
competent jurisdiction of such conviction or plea shall be prima facie
evidence of such conviction.
(j) Has violated any provision
of this article or has aided or knowingly permitted any person to
violate any provision of this article; or
(k) Has advertised through
newspapers, magazines, circulars, direct mail, directories, radio,
television, or otherwise that the registrant will perform any act
prohibited by this article.
(4) Any proceeding to deny,
suspend, or revoke a registration or place a registrant on probation
shall be conducted pursuant to sections 24-4-104 and 24-4-105, C.R.S.
Such proceeding may be conducted by an administrative law judge
designated pursuant to part 10 of article 30 of title 24, C.R.S.
(5) The director may accept as
prima facie evidence of grounds for disciplinary action any
disciplinary action taken against a registrant by another jurisdiction
if the violation that prompted such disciplinary action would be
grounds for disciplinary action under this article.
(6) To aid the director in any
hearing or investigation instituted pursuant to this section, the
director shall have the power to issue subpoenas commanding the
appearance of persons and the production of copies of records
containing information relevant to the practice of direct-entry
midwifery rendered by any registrant, including, but not limited to,
hospital and physician records. The provider of such copies shall
prepare the copies from the original record and shall delete the name
of the patient, to be retained by the custodian of the records from
which the copies were made, but shall identify the patient by a
numbered code. Upon certification by the custodian that the copies are
true and complete except for the patient's name, the copies shall be
deemed authentic, subject to the right to inspect the originals for
the limited purpose of ascertaining the accuracy of the copies. No
privilege of confidentiality shall exist with respect to such copies
and no liability shall lie against the director or the custodian or
the director's or custodian's authorized employees for furnishing or
using such copies in accordance with this section.
12-37-108.
Criminal penalties. Any
person who practices or offers or attempts to practice direct-entry
midwifery without first complying with the registration requirements
of section 12-37-103 and the disclosure requirements of section
12-37-104 commits a class 2 misdemeanor and shall be punished as
provided in section 18-1-106, C.R.S., for the first offense, and for
the second or any subsequent offense, such person commits a class 6
felony and shall be punished as provided in section 18-1-105, C.R.S.
12-37-109.
Assumption of risk - no vicarious liability - legislative declaration.
(1) (a) The general
assembly hereby finds, determines, and declares that the authority
granted in this article for the provision of unlicensed midwifery
services does not constitute an endorsement of such practices, and
that it is incumbent upon the individual seeking such services to
ascertain the qualifications of the registrant direct-entry midwife.
It is the policy of this state that registrants shall be liable for
their acts or omissions in the performance of the services that they
provide, and that no licensed physician, nurse, prehospital emergency
medical personnel, or health care institution shall be liable for any
act or omission resulting from the administration of services by any
registrant. The provisions of this subsection (1) shall not relieve
any physician, nurse, prehospital emergency personnel, or health care
institution from liability for any willful and wanton act or omission
or any act or omission constituting gross negligence, or under
circumstances where a registrant has a business or supervised
relationship with any such physician, nurse, prehospital emergency
personnel, or health care institution. A physician, nurse, prehospital
emergency personnel, or health care institution may provide
consultation or education to the registrant without establishing a
business or supervisory relationship.
(b) The general assembly
further finds, determines, and declares that the limitation on
liability provided in section 13-64-302, C.R.S., is predicated upon
full licensure, discipline, and regulatory oversight and that the
practice of unlicensed midwifery by registrants pursuant to this
article is authorized as an alternative to such full licensure,
discipline, and regulatory oversight and is therefore not subject to
the limitations provided in section 13-64-302, C.R.S.
(2) Nothing in this article
shall be construed to indicate or imply that a registrant providing
services under this article is a licensed health care provider for the
purposes of reimbursement by any health insurer, third party payer, or
governmental health care program.
(3) At such time as the
director finds that liability insurance is available at an affordable
price, the direct-entry midwife shall be required to carry such
insurance.
12-37-109.5.
Immunity. The
director, division, staff, any person acting as a consultant to the
director, any witness testifying in a proceeding authorized under this
article, and any person who lodges a complaint pursuant to this
article shall be immune from criminal liability and suit in any civil
action brought by any person based upon an action of the director if
such person, staff person, consultant, or witness acts in good faith
within the scope of this article, has made a reasonable effort to
ascertain the facts of the matter as to which he or she acts, and acts
in the reasonable belief that the action taken by him or her is
warranted by the facts. The immunity provided by this section shall
also extend to any person participating in good faith in any
investigative proceeding pursuant to this article.
Source:
L. 96: Entire section added, p. 399, § 8, effective April 17.
12-37-109.7.
Confidential files. The
director may keep confidential all files and information concerning an
investigation authorized under this article until the results of such
investigation are provided to the director and either the complaint is
dismissed or notice of hearing and charges are served upon the
registrant.
Source:
L. 96: Entire section added, p. 399, § 8, effective April 17.
12-37-110.
Repeal of article. (1)
This article is repealed, effective July 1, 2001.
(2) Prior to such repeal, the
registering of direct-entry midwives by the division of registrations
shall be reviewed as provided in section 24-34-104, C.R.S.
12-36-106.
Practice of medicine defined - exemptions from licensing requirements
- repeal.
(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
with the intention of receiving therefor, either directly or
indirectly, any fee, gift, or compensation whatsoever;
(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; or
(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 the provisions of article 37 of this title.
(B) This subparagraph (II) is
repealed, effective July 1, 2001.
(2) If any person who does not
possess and has not filed a license to practice medicine within this
state, as provided in this article, and who is not exempted from the
licensing requirements under this section, shall do any of the acts
mentioned in this section as constituting the practice of medicine, he
shall be deemed to be practicing medicine without complying with the
provisions of this article and in violation thereof.
(3) Nothing in this section
shall be construed to prohibit, or to require a license under this
article with respect to, any of the following acts:
(a) The gratuitous rendering
of services in cases of emergency;
(b) The rendering of services
in this state by a physician lawfully practicing medicine in another
state or territory, whether or not such physician is in Colorado, but
if any such physician does not limit such services to an occasional
consultation or case or if such physician has any established or
regularly used hospital connections in this state or if such physician
is party to any contract, agreement, or understanding to provide the
services described in paragraph (a) of subsection (1) of this section
or if such physician maintains or is provided with for his or her
regular use any office or other place for the rendering of such
services, such physician shall possess a license to practice medicine
in this state;
(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,
interns, or residents in a hospital or other place as required by
their approved educational program subject to the conditions and
limitations provided by this article;
(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 section
25-1-107 (1) (ee), C.R.S.
(II) This paragraph (o) is
repealed, effective July 1, 2009. Prior to such repeal, the exemption
to licensure requirement set forth in this paragraph (o) shall be
subject to review by a legislative committee of reference designated
pursuant to section 2-3-1201, C.R.S., to conduct the review pursuant
to section 24-34-104, C.R.S., and the provisions of section 24-34-104
(5) to (12), C.R.S., concerning a wind-up period, an analysis and
evaluation, public hearings, and claims by or against an agency shall
apply to the operation of the program specified in this paragraph (o).
(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 section
27-10.5-103 (2) (k), C.R.S., as a part of residential or day program
services provided through service agencies approved by the department
of human services pursuant to section 27-10.5-104.5, C.R.S.
(II) Repealed.
(r) The administration of
topical and aerosol medications within the scope of physical therapy
practice as provided in section 12-41-113 (2);
(s) The rendering of services
by an athletic trainer subject to the conditions and limitations
provided in subsection (3.5) of this section;
(t) (I) The rendering of
prescriptions by an advanced practice nurse pursuant to section
12-38-111.6.
(II) A physician who signs a
collaborative agreement with an advanced practice nurse pursuant to
the requirements of section 12-38-111.6 (4) (d) 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) (A) Except as provided
in sub-subparagraph (C) of this subparagraph (III), a physician may
not enter into more than five collaborative agreements in accordance
with section 12-38-111.6.
(B) It is unlawful and a
violation of this article for any person, corporation, or other entity
to require as a condition of contract, employment, or compensation to
exceed the limitation set pursuant to sub-subparagraph (A) of this
subparagraph (III).
(C) The board may waive the
maximum number of advanced practice nurses with whom a physician may
sign a collaborative agreement for a specific physician upon a finding
that quality patient care can be maintained.
(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
C.F.R. 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 C.F.R. 493.1701 and any related or successor
provision.
(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) (a) The state board of
medical examiners shall promulgate rules and regulations specifying
the types of services which a qualified athletic trainer may render
pursuant to paragraph (s) of subsection (3) of this section. In order
to qualify for the exception allowed pursuant to said paragraph (s),
such services must be rendered only by qualified athletic trainers who
render the services, within the athletic trainer scope of practice as
defined pursuant to this subsection (3.5), in the course of
participation in an educational institution's sports program, an
organized amateur sports organization, a professional sports
organization, a recreational program of a county, municipal, or
special district government, or an organized community sports event.
(b) For purposes of this
subsection (3.5), "qualified athletic trainer" means a
person:
(I) Who has a baccalaureate
degree granted by an accredited college or university or a college or
university approved by the state educational board or department in
another state, which degree is in a field related to athletic training
as defined by the college or university which granted the degree, and
who has completed a minimum of one thousand five hundred actual hours
of supervised clinical experience or internship training in athletic
training under the supervision of a person accredited by a national
athletic training standards organization designated by the state board
of medical examiners; or
(II) Who has a baccalaureate
degree with a major in athletic training which was granted through a
college or university program which is accredited by a national
athletic training standards organization designated by the state board
of medical examiners and who has completed a minimum of eight hundred
actual hours of supervised clinical experience or internship in
athletic training under the supervision of a person accredited by a
national athletic training standards organization designated by the
state board of medical examiners.
(c) For purposes of this
subsection (3.5), "athlete" means an individual
participating in an educational institution's sports program, an
organized sports organization, a professional sports organization, a
recreational program of a county, municipal, or special district
government, or an organized community sports event.
(d) For purposes of this
subsection (3.5), "athletic trainer scope of practice" means
the performance of all or some of the following functions by a
qualified athletic trainer:
(I) The development and
implementation of conditioning programs for athletes as defined in
paragraph (c) of this subsection (3.5);
(II) The performance of
strength testing using mechanical devices or other standard
techniques;
(III) The application of tape,
braces, and protective device to prevent injury;
(IV) The supervision of
maintenance of athletic equipment to assure safety;
(V) The assessment, during a
screening process, of physical limitations, including those previously
diagnosed by a physician, which may pose a risk of injury to an
athlete;
(VI) The determination of the
level of functional capacity, decreased range of motion or muscular
weakness of an injured athlete in order to establish the extent of an
injury;
(VII) The administration of
standard techniques of first aid;
(VIII) The use of emergency
care equipment to aid the injured athlete by facilitating safe
transportation to an appropriate medical facility;
(IX) The referral of an
athlete to appropriate medical personnel as needed;
(X) The use of exercise and
other therapies for which the athletic trainer has received formal
training, not including drugs, to restore an injured athlete to normal
function;
(XI) The maintenance of
athletic training records;
(XII) The organization of a
medical care service delivery system for athletes when needed;
(XIII) The establishment of
plans to manage an athlete's medical emergencies;
(XIV) The education and
counseling of athletes on sports health related topics;
(XV) The instruction of
student athletic trainers; and
(XVI) The education and
counseling of the general public with respect to appropriate athletic
training programs.
(e) Nothing in this subsection
(3.5) shall be construed as conferring any authority to practice, or
to hold oneself out through advertisement or billing as providing,
physical therapy as defined in section 12-41-103.
(f) The state board of medical
examiners shall seek the voluntary assistance of physicians and
athletic trainers in developing and formulating the rules and
regulations required to be promulgated pursuant to this subsection
(3.5).
(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 certified by the board the authority to perform
acts which constitute the practice of medicine to the extent and in
the manner authorized by rules and regulations promulgated by the
board, including the authority to prescribe medication, including
controlled substances, and dispense only such drugs as designated by
the board. Such acts shall be consistent with sound medical practice.
Each prescription issued by a physician assistant certified by the
board shall have imprinted thereon the name of his or her supervising
physician. Nothing in this subsection (5) shall limit the ability of
otherwise licensed health personnel to perform delegated acts. The
dispensing of prescription medication by a physician assistant shall
be subject to the provisions of section 12-22-121 (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, and said
person shall not be responsible for the direction and supervision of
more than two physician assistants at any one time without specific
approval of the board. The board may define appropriate direction and
supervision pursuant to rules and regulations.
(II) For purposes of this
subsection (5), "personal and responsible direction and
supervision" means that the direction and supervision of a
physician assistant must be personally rendered by a licensed
physician practicing in the state of Colorado and not through
intermediaries. The extent of direction and supervision shall be
determined by rules and regulations 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 every two working days 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) If the state board of
medical examiners has a reasonable belief that additional supervision
or direction may be necessary it may issue a cease and desist order to
the supervising physician or physician assistant to require that a
function be delegated only on a case-by-case basis, or to require that
the supervising physician be present on the premises in specific types
of cases that arise in an acute care hospital setting. Such a cease
and desist order shall become effective upon delivery to the
supervising physician or physician assistant to whom it is issued. Any
supervising physician or physician assistant who receives such an
order may request a hearing on the merits of the order, which request
shall be promptly granted. Any restriction or requirement imposed by
such an order shall not be deemed a disciplinary action, restriction,
or other limitation on the physician's license or the physician
assistant's certification.
(c) To become certified, a
physician assistant shall have:
(I) Successfully completed an
education program for physician assistants which conforms to standards
approved by the board, which standards may be established by utilizing
the assistance of any responsible accrediting organization; and
(II) Successfully completed
the national certifying examination for assistants to the primary care
physician which is administered by the national commission on
certification of physician assistants or successfully completed any
other examination approved by the board; and
(III) Applied to the board on
the forms and in the manner designated by the board and paid the
appropriate fee established by the board pursuant to section
24-34-105, C.R.S.; and
(IV) Attained the age of
twenty-one years.
(d) The board may determine
whether any applicant for certification as a physician assistant
possesses sufficient education, experience, or training in health care
which may be accepted in lieu of the qualifications required for
certification under subparagraph (I) of paragraph (c) of this
subsection (5). Every person who desires to qualify for practice as a
physician assistant within this state shall file with the secretary of
the board his written application for certification, on which
application he shall list any act the commission of which would be
grounds for disciplinary action against a certified physician
assistant under section 12-36-117, along with an explanation of the
circumstances of such act. The board may deny certification to any
applicant who has performed any act which constitutes unprofessional
conduct, as defined in section 12-36-117.
(e) No person certified as a
physician assistant may perform any act which constitutes the practice
of medicine within a hospital or nursing care facility which is
licensed pursuant to part 1 of article 3 of title 25, C.R.S., or which
is required to obtain a certificate of compliance pursuant to section
25-1-107 (1) (l) (II), C.R.S., without authorization from the
governing board of the hospital or nursing care facility. Such
governing board shall have the authority to grant, deny, or limit such
authority to its own established procedures.
(f) The board may take any
disciplinary action with respect to a physician assistant certificate
as it may with respect to the license of a physician, in accordance
with procedures established pursuant to this article.
(g) Pursuant to the provisions
of section 12-36-132, the board may apply for an injunction to enjoin
any person from performing delegated medical acts which are in
violation of this section or of any rules and regulations 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) The board shall certify
and keep a record of physician assistants who have been certified
pursuant to paragraph (c) of this subsection (5) and shall establish
renewal fees and schedules subject to the provisions of section
24-34-102 (8), C.R.S. Every certified physician assistant shall pay to
the secretary of the board a registration fee to be determined and
collected pursuant to section 24-34-105, C.R.S., and shall obtain a
registration certificate for the current calendar year.
(j) This subsection (5) is
repealed, effective July 1, 2010.
Am.
Jur.2d. See 61 Am.
Jur.2d, Physicians, Surgeons, and Other Healers, § § 2, 34-36,
63-68.
C.J.S.
See 70 C.J.S., Physicians, Surgeons, and Other Health-Care Providers,
§ § 2-7.
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).
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); Colorado
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. Examiners 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.
Colorado 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.
Colorado 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. Examiners 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 Medical Examiners 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. Industrial 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.
Colorado 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. Colorado 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 Medical Exmrs., 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. Colorado Bd. of Med. Examiners v.
Raemer, 794 P.2d 1075 (Colo. App. 1990), appeal dismissed, 801 P.2d
536 (Colo. 1990).
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