June 30, 2020

New Jersey Executive Order and Subsequent Guidance Permitting Elective Surgeries and Invasive Procedures to Resume

Over the past several weeks, many states have shifted their focus from concerns around restricting business and activity due to increasing numbers of COVID-19 cases to resuming some limited and vital activities as COVID-19 cases have begun to decrease.

In New Jersey, Governor Phil Murphy issued Executive Order 145 on May 15, 2020, rescinding his March 23, 2020 executive order, Executive Order 109, suspending elective surgeries and invasive procedures, and permitting such surgeries and procedures to resume at health care facilities and in outpatient settings beginning at 5 a.m. on May 26, 2020. Executive Order 145 also stated that the resumption of these procedures would be subject to guidance to be issued by the New Jersey Department of Health (DOH) and the New Jersey Division of Consumer Affairs (DCA). In New Jersey, the DOH has the authority to oversee and license facilities such as hospitals and ambulatory surgery centers (ASCs), and therefore guidance from the DOH was to address resumption of surgeries and procedures at hospitals and ASCs. The DCA, which oversees licensed professionals in New Jersey such as dentists, physicians, nurses and physical therapists, was to issue guidance to address the ability of and requirements around such licensees performing elective procedures in their offices.

New Jersey DOH Guidance

On May 19, 2020, the DOH issued guidance for Hospitals and Ambulatory Surgery Centers (ASCs) to resume elective surgeries and invasive procedures. The guidance outlines a number of different requirements for hospitals and ASCs to meet in order to resume elective surgeries and invasive procedures. The guidance requires hospitals and ASCs to institute screening of health staff for symptoms of COVID-19, enforce social distancing requirements in work and common areas, require masks for all patients, have an established plan for cleaning and disinfecting prior to using facilities to serve non-COVID-19 patients, and ensure that all health care workers wear appropriate PPE consistent with CDC and DOH recommendations. The guidance also sets forth standards to guide hospitals and ASCs in determining the prioritization policy for providing care and scheduling procedures. It creates five different levels of procedures, Levels 1-5, with each level differentiated by the severity of the health condition and the patient’s need for the procedure. Additionally, the facilities must follow state and CDC guidelines as they perform these surgeries and procedures. Hospitals and ASCs must test all patients for COVID-19, and the guidance prohibits ASCs from performing procedures on COVID-19 positive patients. The guidance requires hospitals and ASCs to “test (specimen collected and result received) each patient within a 96-hour maximum before a scheduled procedure with a preoperative COVID-19 RT-PCR test and ensure COVID-19 negative status.” Hospitals are permitted to perform certain procedures on COVID-19 patients but must cohort COVID-19 patients and non-COVID-19 patients. Patients testing positive for COVID-19 are only permitted to receive Level 1, Level 2 and Level 3 priority procedures in hospitals.

New Jersey DCA Administrative Order No. 2020-07

On May 18, 2020, the DCA issued Administrative Order No. 2020-07 which clarifies the directive outlined in Executive Order 145 concerning the resumption of elective surgeries in outpatient settings, such as healthcare professional offices, clinics, and urgent care centers, which are not licensed by the DOH in New Jersey. The Administrative Order sets forth policies which must be implemented by healthcare professionals, or licensees, who provide services in office settings during the COVID-19 state of emergency. The rules in the Administrative Order are effective immediately upon issuance and remain in effect until the end of the public health emergency or the end of the state of emergency declared on March 9, 2020 in Executive Order 103, whichever is later. The Administrative Order sets forth five categories of policies with which health care professionals must adopt and comply: (i) policies to avoid person-to-person contact in the office; (ii) policies to facilitate social distancing within the office; (iii) policies to adopt enhanced office cleaning and disinfection; (iv) policies to establish rigorous protections for staff; and (v) policies to stay informed about developments and obligations and share guidance with patients. Licensees who perform elective surgery or elective invasive procedures or who are offering medically-necessary procedures which involve direct contact with the patient’s face, eyes, or mouth must comply with additional requirements. These additional requirements include deferring any elective surgery or procedure or routine dental or eye care if a patient is COVID-19 positive or symptomatic, until at least 10 days after the patient first experienced symptoms and at least three days (72 hours) have passed since recovery, defined as resolution of a fever, without the use of fever reducing medications.

As hospitals, ASCs, and professional practices in New Jersey resume elective procedures and surgeries, there are multiple requirements and standards with which they must comply. As circumstances in New Jersey and elsewhere continue to evolve, there may be modifications to the guidance issued by the DOH and DCA, and providers should continue to monitor such changes.

Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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