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DORA Clarifies Guidance for Telehealth Treatments

On Tuesday, April 13, 2020, DORA’s Division of Professions and Occupations posted an email that was sent to licensed healthcare professionals regarding the use of telehealth services, titled, “Additional Information on Telehealth Services for Healthcare Professionals.”

Prior to that email/post, DORA had not made a definitive statement that telehealth services are required as opposed to recommended for those healthcare providers who continue to practice during the COVID-19 pandemic. Though the email/post does still not state a requirement for the use of telehealth services, the recommendation is much stronger, setting out specific considerations for practitioners to consider in assessing whether in-person consultations remain appropriate.

In the email/post, DORA states its position that although Executive Order D 2020 020 (the Executive Order through which Governor Polis suspended certain statutes to expand the use of telehealth services in the presence of COVID-19) specifically referenced only mental health and veterinary services providers, DORA believes the reach of the Order is greater. The email/post lists the various healthcare professions that DORA believes “also are able and encouraged to use telehealth in treatment of patients for the duration of this health emergency.” The vast majority of licensed health care professionals are included on that list.

DORA then takes the question of continuing in-person consultations head-on, directly posting and responding to the following question: “What if telehealth is not sufficient to address the needs of my patients? Can I still conduct in-person appointments?”

DORA’s response is that all healthcare professionals identified earlier in the email/post – i.e., the vast majority of licensed healthcare professionals – must continue to comply with all existing mandates, including Executive Order D 2020 027 (prohibiting elective, non-emergency procedures, with limited exception) and social distancing requirements. DORA then goes one step further: “We are asking all healthcare professionals to assess the essential need to provide services on a conservative, case-by-case, patient-by-patient basis to ensure compliance with [Executive Order D 2020 027].” DORA asks providers to consider that the only procedures or surgeries permissible include those that address (a) a threat to the patient’s life, (b) a threat of permanent dysfunction of an extremity or organ system, (c) a risk of metastasis or progression of staging of a disease or condition, and (d) a risk that the patient’s condition will rapidly deteriorate.

The email/post continues, addressing the question of what insurance considerations a healthcare provider must be aware of before offering telehealth services and whether a healthcare professional can continue to provide services to individuals who now reside out of state. The email/post also directs readers to additional resources that may be useful as you navigate through this difficult time.

Contact Caplan & Earnest With Questions

Caplan & Earnest understands that many healthcare professionals have exercised the professional judgment to continue to see patients and clients in-person during this COVID-19 pandemic. Should you wish to discuss how and to what extent the information contained in this new email/post impacts your ability to continue to do so, please do not hesitate to contact Meghan Pound or Sheryl Bridges in Caplan & Earnest’s Health Law practice. Our attorneys continue to closely follow these developments, as well as many others related to changing laws, regulations and rules relating to the COVID-19 pandemic.

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