Colorado Bill Removes Physician Supervision Requirement for Physician Assistants

In Colorado, legislators have passed a bill expanding the ability for physician assistants (PAs) to practice medicine more independently in physician practices and other health care facilities. Currently, physicians and podiatrists are required to supervise their PAs’ clinical practice. Effective Aug. 7, 2023, physicians and podiatrists will no longer be required to supervise their PAs but rather have an ongoing collaborative agreement. The collaborative agreement will be set forth by the employer, physician or physician group.

This bill is not the first of its kind. SB 23-083 is modeled after similar legislation in 20 other states that have modified the legal relationship between a PA and a physician or podiatrist by removing the requirement that the PA be supervised by the physician or podiatrist.

According to the Colorado Academy of Physician Assistants, replacing the “supervision” standard with a “collaborative agreement” standard will positively impact the medical field in numerous ways, including:

• Expanding the PAs' Scope of Practice: The current mandatory supervision standard restricts a PA’s ability to maintain the skills they are educated and trained to perform because a PA’s scope of care is tied to their physician supervisor’s scope of care.
• Improved Patient Safety and Quality of Care: The collaborative agreement will be determined by the physician or employer and will specify how new and established PAs will work with physicians and other providers on the health care team. PAs with less than 3,000 hours of clinical practice will have more oversight than more experienced PAs. Some of the oversight requirements include collaboration in person or via technology and a PA evaluation at six and 12 months. PAs will continue to be held to the same strict professional and ethical standards required of all professionals licensed and regulated by the Colorado Medical Board.
• Increased Access to Care: Eliminating the requirement for a PA to have a specific supervisory relationship with a physician will make it easier for PAs to practice in rural and medically underserved communities. It will also allow PAs to provide volunteer medical services and respond to disasters and emergencies more easily and robustly.
• Reduced Health Care Costs: Expanding the scope of practice for PAs will reduce health care costs because they are among the most cost-effective health care practitioners.
• Elimination of Administrative Burdens on Physicians and Employers: There will be increased flexibility in creating health care teams due to reduction of administrative burdens imposed on the supervising physician or podiatrist.

The bill contains a petition clause, which means it takes place 90 days after adjournment of the Colorado legislative session. Accordingly, the bill will come into effect on Aug. 7, 2023, and will replace all past practice laws. (See relevant revisions to the Colorado Revised Statutes here.)

Potential Changes to the Employer-Employee Relationship and Its Effect on Liability

SB 23-083 does not change the scope of practice for PAs. Current law states that PAs may perform acts constituting the “practice of medicine,” consistent with sound medical practice and to the extent determined by the Medical Board [see Colo. Rev. Stat. section 12-240-107(6)(a) (2020)]. This practice includes diagnosing, treating, prescribing for, or preventing physical or mental health conditions or substance use disorders through the use of drugs, surgery, telemedicine, the interpretation of diagnostic tests or other means. [see Colo. Rev. Stat. section 12-240-107(6)(a)-(b)) (2020)]. Going forward, PAs will be better able to work to the full extent of their license—as determined by the PA’s training, experience and skills—and will no longer be limited by the scope of their supervising physician’s practice.

All PAs will be responsible for the care they provide. As such, the new bill also means:

• If the physician leaves and cannot be replaced, the PAs no longer risk losing their job.
• The Colorado Medical Board will continue to oversee issues relating to PAs’ licensure and retain the ability to discipline a PA if warranted.
• Employers will retain the ability to create additional collaboration requirements that go above and beyond the requirements of the law if they believe such requirements are necessary based on their staffing and patient populations.

This change in law raises the inevitable question: How does replacing the “supervision” requirement with a “collaborative agreement” requirement change an employer’s liability for the PA’s clinical practice? With the rise of PAs comes greater concerns among some patients who see a potential malpractice target if they believe they’ve received inferior care from a PA. Although there currently are no expected revisions to malpractice coverage requirements for PAs in Colorado, this may change. PAs still are required to carry malpractice insurance and will be responsible for the care they provide. Malpractice insurance is typically provided by employers. Thus, PAs should review their current policy and address any questions with their employer. Additionally, employers should communicate with their employed PAs regarding any changes to their malpractice insurance coverage as a result of SB 23-083.

Another emerging question is whether a physician must sign the collaboration agreement. While a physician or podiatrist may sign a collaboration agreement to streamline the process, the bill explicitly states that an employer cannot require a licensed physician to enter into a collaborative agreement as a condition of the physician’s employment.

There are also questions regarding liability for PAs and physicians in collaborative agreement settings. The agreement itself is not intended to create supervisory responsibility or represent a legal responsibility by a physician for the care provided by the PA. However, a medical practice should consult with its professional liability carrier about appropriate coverage relating to a collaboration agreement. The Colorado Medical Board has drafted a sample collaboration agreement template that can be used as a starting point for employers. But it is still recommended that the employer’s agreement be tailored to its respective practice setting.

Please reach out to one of the authors named here for specific advice on legal or regulatory compliance with the new law.

Brownstein Summer Associate Michelle Sanchez contributed to this alert. 

This document is intended to provide you with general information regarding Senate Bill 23-083 in Colorado. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.