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Lack of clarity in state’s health care order leaves some dentists fearful of losing licenses

DENVER–For at least some Colorado dentists, a lack of clarity in state orders around providing health care leaves them fearful of potential disciplinary action should they be second-guessed when making reasoned professional medical decisions about the urgency of dental care. They are concerned that the Colorado Dental Board might revoke their licenses.  Warnings that have already gone out to other dentists seem to only validate their concerns.

On March 26 Comfort Dental Group (CDG) received a threatening letter from Colorado Attorney General Phil Weiser claiming that the state had “credible and significantly alarming reports that several, and perhaps many, Comfort Dental franchises in Colorado have this week been treating patients by providing voluntary or elective surgeries or procedures, in direct violation of Executive Order D 2020 009.”

That order prohibited all medical providers from performing “elective or voluntary surgeries or procedures” until at least April 14.

“From these reports, it is apparent that various Comfort Dental franchises have been failing to restrict their practice to emergency or life-saving needs but instead are continuing to engage in elective dental procedures, as well as not ensuring proper social distancing,” says the letter.

No specific evidence of any violation was provided in the letter, and no complainants were identified.

The letter goes on to say, “You are reminded that the only surgeries or procedures that may take place at Comfort Dental franchises in Colorado are those where:
(1) there is a threat to the patient’s life if the surgery or procedure is not performed;
(2) there is a threat of permanent dysfunction of an extremity or organ system if the surgery or procedure is not performed;
(3) there is a risk of metastasis or progression of staging of a disease or condition if the surgery or procedure is not performed; or
(4) there is a risk that the patient’s condition will rapidly deteriorate if the surgery or procedure is not performed and threat to life, or to an extremity or organ system, or of permanent dysfunction or disability. Immediate compliance by your franchises is compulsory, and any further continuing non-compliance will be subject to the full force and effect of injunctive relief to enforce Executive Order D 2020 009.”

The problem, say dentists speaking on the condition of anonymity, is that the executive order is far too broad and overreaching. It’s also conflicting and contradictory with other state orders. A separate guidance from the Colorado Department of Regulatory Agencies (DORA) echos the above restrictions but then says, “Dental providers can access the definitions of emergency dental care from the American Dental Association.

The American Dental Association (ADA) site provides a long list of urgent and emergency dental procedures and a short list of routine or non-urgent dental procedures.

One dentist interviewed by Complete Colorado Wednesday characterized the Colorado Dental Board as “arbitrary and capricious” during the best of times.

“They don’t issue guidance because that would limit their power,” said the dentist.

So some dentists are simply shutting down their offices out of fear of being second-guessed by the board instead of trying to adhere to the guidelines of the ADA while still treating dental emergencies.

With some offices closed people needing treatment have to search for a dentist that is willing to see them, or resort to going to the emergency room because they have no other option. This crowds ERs, risking further viral infection, and wastes precious resources.

“Most of the patients we see are Medicaid patients,” the dentist said. “It costs the hospital a hundred times as much to pull a tooth in the ER. I can do it under Medicaid for $160. I can pull the tooth and give the patient antibiotics and send them on their way.”

“The board could just tell us what procedures are permitted, but they won’t,” the dentist continued.

The Colorado Dental Board accepts anonymous complaints and provides little in the way of due process says the dentist.

“You can challenge the board, but it takes a lawyer to do so,” said the dentist.

The order, which applies to all medical care professionals, doesn’t define what “procedures” needed for other necessary, but not necessarily life-saving medical care are permissible.

For example, is a dental exam and x-rays for a patient reporting severe tooth pain allowed?

Severe tooth pain may be evidence of an abscess, which makes it a dental emergency. But that cannot be determined without an office visit and an examination, which is what appears to have gotten CDG in trouble.

“When an infection occurs, bacteria can move out of the tooth to the bone or tissue below, forming a dental abscess. A dental infection can lead to sepsis,” says the Sepsis Alliance, a group formed by Dr. Carl Flatley, a dentist whose 23-year old daughter died of sepsis.

The question is who is best situated to determine the necessity for treatment in any given situation, the Governor, the Dental Board or the dentist?

It was within within three days of the Governor’s order that CDG received the warning from the Attorney General.

In an email sent to all CDG doctors obtained by Complete Colorado, CDG General Counsel Graig Bears says, “No doubt, the seed of the letter was a competing dentist or dental service organization. While we continue to believe that by seeing emergency patients Comfort Dental dentists are playing an integral role in keeping dental emergencies out of the state’s emergency rooms, all dentists must make sure they are in compliance with Governor Polis’s order.”

But the dentists Complete Colorado spoke with believe that without clear guidelines they can adhere to their licenses are in jeopardy and diverting patients to hospital emergency rooms is their only option.

“It’s no surprise that people with dental issues are flooding emergency rooms,” said the dentist. “What did they expect when they refuse to be more specific about what constitutes a dental emergency?”

Editor’s Note: Comfort Dental Group did not respond to multiple requests for comment. This story will be updated if new information becomes available.

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