Executive Order Allowing Resumption of Elective Surgeries Contains Important Caveats

On April 26, 2020, Colorado Gov. Jared Polis issued Executive Order D 2020 045 allowing medical, dental, and veterinary voluntary or elective surgeries or procedures to resume. The Executive Order can be found here. Although it puts an end to the ban on elective surgeries and procedures, the Executive Order does not allow providers to offer these services like they did before the COVID-19 pandemic.

Facilities where elective procedures or surgeries will be performed must “establish a plan to reduce or stop voluntary or elective surgeries and procedures if there is a surge of COVID-19 infections in the county or municipality in which the Facility is located.” CDPHE is tasked with defining what constitutes a COVID-19 surge. In addition, elective surgeries and procedures may not be performed if doing so would require the providers to utilize hospital crisis standards of care. The Executive Order instructs providers to maximize telehealth capabilities as much as possible.

The Executive Order also directs CDPHE to identify or develop various protocols and best practice parameters with which providers and facilities wishing to provide elective surgeries and procedures must comply. These protocols and practice parameters relate to:

• PPE access and use
• Implementation of a universal symptom screening
• Adoption of rigid cleaning processes
• Creation of policies and procedures for patient discharge planning
• Recommendations regarding online billing
• Consideration of further delay of certain kinds of procedures, and more

As of today, April 27, 2020, CDPHE has not published guidance relating to the Executive Order. DORA has also not issued new guidance in response to the Executive Order. DORA has in the past, however, stated that it considered the Governor’s initial Executive Order requiring the cessation of elective surgeries and procedures to apply to health care providers outside of the medical, dental, and veterinary providers specifically named in the Executive Order. We will await further word as to whether DORA will view the lifting of the cessation in an equally broad fashion.

As always, it is also important to check with your county officials to understand whether the parameters of the Executive Order will apply to your locale.

Contact Caplan & Earnest with Questions

If you have questions about the resumption of voluntary or elective surgeries or procedures, please 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.