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ASC/Surgical Practice Update Re. COVID-19

March 24, 2020
By Mohamed H. Nabulsi and Christopher G. Salloum

A Call To Arms: Gov. Murphy Orders the Suspension of all Elective Surgeries and Elective Procedures Performed on Adults

Late yesterday, March 23, 2020, the Governor issued Executive Order No. 109 (the “Order”) that takes sweeping and unprecedented action as part of the State’s growing efforts to curb the accelerating COVID-19 pandemic.

First , effective 5:00 p.m. on Friday, March 27, the Order suspends all “elective” surgeries and invasive procedures, whether medical or dental, performed on adults in this State (collectively, “Elective Procedures”). Under the Order, a surgery or invasive procedure is “elective” if it “can be delayed without undue risk to the current or future health of the patient as determined by the patient’s treating physician or dentist.” (The Order, however, expressly excludes the administration of vaccines from its definition of “elective” surgery or invasive procedure.) Elective Procedures scheduled for after 5:00 p.m. on March 27 must “be cancelled or postponed indefinitely,” and “[f]acilities are to immediately notify all patients and providers that have scheduled elective surgeries or invasive procedures that these operations cannot proceed as scheduled.” Notably, the Order does not impose an obligation on an individual provider to notify his or her patient that an elective procedure has been cancelled.

You should be aware that:

I. The Order requires that health care providers who are “planning or determining whether to perform surgery and invasive procedures in their office ” to “consider any possible post-operation complications that may place additional stress on local hospitals that do not have the capacity to accept transfers and need to coordinate any possible pre-operation admissions with local hospitals prior to performing surgeries or invasive procedures.”

II. The Order requires that each hospital or ambulatory surgical center “establish written guidelines to ensure adherence” to the Order’s requirements, and provide a copy of the same to the Department of Health (“DOH”). The Order specifically requires that such guidelines must “include a process for consultation with the treating provider about a designation that the surgery or invasive procedure is elective under the terms of this Order.”

By operation of the foregoing, Surgical Practices (one operating room surgical suites) and Ambulatory Surgical Centers may be able to continue to perform certain outpatient procedures on adult patients, as long as such procedures are necessary to prevent an undue risk to the current or future health of the patient, pursuant to the above-referenced guidelines. As written, the Order does not require that the DOH approve the guidelines; a mere notice seems to suffice. That being said, the guidelines must be carefully crafted, in consultation with legal counsel, to ensure compliance with the Order and decrease the likelihood of drawing an objection from the DOH.

Additionally, pursuant to the Order, the Commissioner of the DOH has the authority to issue binding directives regarding any of the foregoing requirements, which, if such directives are issued, may impose stricter requirements regarding, among other things, the substance of the guidelines that each hospital or Ambulatory Surgery Center must establish pursuant to the Order.

Second, in an apparent recognition that crucial medical supplies may be lacking, the Order requires that all businesses and non-hospital health care facilities, including construction facilities, office-based healthcare or veterinary practices, and institutions of higher learning, in possession of personal protective equipment, ventilators, respirators, or anesthesia machines that “are not required for the provision of critical health care services” should “undertake an inventory of such supplies and to send that information to the State.”

Third, the Order empowers the Director of the Division of Consumer Affairs, in consultation with the DOH Commissioner, to “issue orders restricting or expanding the scope of practice for any category of healthcare professional or veterinarian,” including orders that restrict not just elective surgeries and procedures but also “examinations,” as well as orders that further limit “the scope of practice, or the location for the delivery of service of other licensees[.]” In other words, for example, if the Director determines that the public health requires that certain professionals licensed by a professional board be restricted in their ability to provide patients with elective examinations, an undefined term, then the Director may order such a restriction and require such licensees only to provide services that will assist the State’s effort to combat the virus that causes COVID-19 and also require that they perform such services at locations within the State where those services are needed. Presumably because veterinarians have some training in internal medicine, the Order, notably, would allow the Director to order the scope of practice of licensed veterinarians (whom the Order classifies as distinct from healthcare professionals) be expanded to allow veterinarians to treat humans in the manner that the Director determines to be appropriate for the duration of the crisis.

Additionally, under the Order, the Director may “waive any restriction on the entry or reentry into practice (or any restriction on the prescription of controlled dangerous substances or on access to the prescription monitoring program of any person who has received training for employment in a healthcare profession or who has retired from practice.” Under this Order, therefore, if the Director, in consultation with the DOH Commissioner, determines that the public health and safety require that physicians, nurses, dentists, veterinarians, and other professionals who have retired should be permitted to reenter practice to assist with the crisis, or if anyone else who has “training for employment in a healthcare profession,” which presumably may even include physicians whose licenses are presently suspended, then the Director may Order the waiver of “any restriction entry or reentry into practice” for such individuals so that they may reenter practice as quickly as possible.

Please contact us with any questions, or for guidance on drafting the above-referenced guidelines.

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