Healthcare Alert: N.J. Imposes New Rules Governing the Disposition of Human Remains During the Ongoing COVID-19 Public Health Emergency
By Mohamed H. Nabulsi and Christopher G. Salloum
On April 22, 2020, the Commissioner of the New Jersey Department of Health issued an executive directive (the “Directive”) establishing certain rules and requirements governing the disposition of human remains. The Directive contains requirements for hospitals, certain other healthcare facilities (long-term care, assisted living program, dementia care home, comprehensive personal care home, and residential health care facilities), licensed mortuary practitioners, cemeteries, and crematories. This Alert addresses the new requirements except those that are applicable only to hospitals.
For Long-Term Care, Assisted Living Program, Dementia Care Home, Comprehensive Personal Care Home, and Residential Health Care Facilities (each, a “Health Care Facility”)
1. A Health Care Facility shall afford mortuary and/or Medical Examiner staff 24-hour access to their morgues to retrieve human remains, inclusive of holidays, to the best of their staffing resources.
2. When a death occurs at a Health Care Facility and the identity of the decedent is known:
a. If the facility knows of the legal next-of-kin or designated representative of the decedent, the facility shall contact such individual within 4 hours of the time of death and advise that the person with legal authority to control the disposition of the decedent’s remains must make arrangements for the removal and disposition of the same by a licensed mortuary practitioner within 12 hours of death.
b. If there is no known legal next-of-kin or designated representative for the decedent, or if the remains have not been removed from the facility within 12 hours from the time of death and the facility is unable to continue to safely store the remains, the facility may transport the remains to the designated State Temporary Morgue for the catchment area in which the facility is located:
i. For Bergen, Essex, Hudson, Passaic, Morris, Sussex, and Warren Counties: The Northern State Temporary Morgue, firstname.lastname@example.org, telephone number: 609-433-4117
ii. For Hunterdon, Mercer, Middlesex, Monmouth, Ocean, Somerset, and Union Counties: The Central-Southern State Temporary Morgue, email@example.com, telephone number: 609-433-0641
iii. For Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, and Salem Counties: The Southern State Temporary Morgue, firstname.lastname@example.org, telephone number: 609-433-4184.
c. Following the transfer of human remains to a state temporary morgue, it is the legal responsibility of the Health Care Facility or the registered mortuary to make appropriate and timely arrangements for the removal of the remains from the temporary morgue for final disposition.
d. Any Health Care Facility or registered mortuary that assumes responsibility for the transport of human remains to a State Temporary Morgue is required to do the following:
i. Contact the appropriate temporary morgue, as indicated above, to make arrangements for the temporary morgue to receive the remains;
ii. Ensure that the medical professional pronouncing death initiates the death certificate by entering the death particulars (name, date of death, and cause of death) into the NJ Electronic Death Records System (EDRS) and that an EDRS number is generated prior to transport;
iii. Arrange for transportation of the remains to the appropriate temporary morgue;
iv. Accurately complete the State Transfer Form;
v. Ensure that the remains prepared for transportation are accompanied by available information identifying the decedent:
1. Identifying information must be recorded “indelibly” on the outside of the cadaver bag, near the zipper closure, and on the body itself and shall include the decedent’s name, date of death, date of birth, the name of the transferring entity, and the EDRS case number for the decedent;
2. The transferring entity must maintain a record describing any unique physical attributes of the deceased (scars, markings, tattoos) as well as retain a photograph of the decedent and identifying marks, whenever possible.
3. When the cause of death is known “or reasonably suspected” to have been related to COVID-19 or other contagious disease, a complete copy of the DOH’s Communicable Disease Alert Form must accompany the remains.
vi. Ensure that the transportation provider returns a copy of the fully executed State Transfer Form to the transferring facility in a timely manner after the remains are transported to and received by the temporary morgue.
vii. Maintain a copy of the fully executed State Transfer Form in the decedent’s record
viii. Provide the decedent’s next of kin, if one exists, with a copy of the fully executed state transfer form and advise the next of kin when the remains were transferred and to which temporary morgue.
3. When a death occurs at a Health Care Facility and the identity of the decedent is unknown, unless the circumstances of death are statutorily required to be investigated by the medical examiner’s office, then the remains shall be deemed to be unidentified and:
a. The Health Care Facility shall, no later than 4 hours from the time of death, contact the office of the county or intercounty medical examiner in the jurisdiction where the death occurred to take custody of the remains.
b. The Health Care Facility shall not transfer unidentified remains to a state temporary morgue.
4. A Health Care Facility using a temporary morgue shall ensure that its staff immediately provide the location of the remains and a copy of the fully-executed state transfer form to a licensed mortuary practitioner seeking to take custody of the remains for disposition.
5. Prior to transportation from the location where death occurred or was discovered, all human remains, regardless of cause of death, must be placed into non-porous, polyvinyl (minimum 8mm thickness) zippered pouches designed for human remains (cadaver or body bags) and externally disinfected using products approved by the U.S. Environmental Protection Agency to be effective against viral pathogens.
6. A Health Care Facility and registered mortuary are responsible for maintaining an appropriate supply of body bags to meet the demand.
7. The Health Care Facility and registered mortuary shall provide information on their inventories of cadaver bags to the Department of Health, the Office of the Chief State Medical Examiner, or the New Jersey Office of Emergency Management.
8. Mobility assistance vehicle providers and emergency medical providers, outside of the 911 system, may be used for the purposes of transporting human remains to and from temporary morgue cites. Upon completion of the transport, the emergency medical provider shall disinfect the vehicle that was used to transport the human remains with products approved by the U.S. EPA to be effective against emerging viral pathogens.
For Licensed Mortuary Practitioners, Registered Mortuaries, Cemeteries, and Crematories:
1. The Directive “strongly encourage[s]” licensed mortuary practitioners to provide for the disposition of human remains by direct cremation or immediate burial or entombment, regardless of the cause of death was related to COVID-19.
2. Embalming is strongly discouraged and may only be performed when a licensed mortuary practitioner determines that embalming is necessary and only if appropriate personal protective equipment is utilized.
3. Human remains may not be stored or otherwise held for future memorialization.
4. Licensed mortuary practitioners should provide for the disposition of human remains within seven days of death.
5. Mortuaries, cemeteries, and crematories must maximize their hours of operation in response to increased demand for final disposition services, including expanding daily, weekend, and holiday hours.
6. Licensed mortuary practitioners, under the direction of a registered mortuary, shall not permit in-person viewings, visitations or ceremonies with an open casket containing the decedent, regardless of the cause of death.
7. Viewing, visitations, or ceremonies with closed caskets, or the presentation of the cremains of the decedent are permitted so long as all social distancing limitations on gatherings, as set forth in Executive Order 107 (2020) and NJ Office of Emergency Management Administrative Order No. 2020-04, and any subsequent such order (the “Social Distancing Rules”), are followed.
8. Cemeteries must ensure that all graveside services comply with all Social Distancing Rules.
9. Registered mortuaries must utilize crematories that have the capacity to provide services in a timely manner. The Division of Consumer Affairs is authorized to provide supplemental guidance to effectuate this requirement.
10. Licensed mortuary practitioners may not deny funeral services for any deceased person based upon their cause of death.
11. To the extent possible, licensed mortuary practitioners shall take into consideration the religious, cultural, family, and individual beliefs of the deceased person or their family for the disposition of remains.
12. If a registered mortuary is unable to provide disposition services due to capacity issues, such mortuary shall immediately identify and contact at least one other registered mortuary in another country for the purpose of referring a decedent’s next of kin or designated representative to that mortuary.
If you have any questions, please do not hesitate to contact the seasoned healthcare law team at Mandelbaum Salsburg. We are only a phone call or an email away.