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New Jersey Immunizes Healthcare Workers from Civil Liability and Temporarily Suspends Numerous Statutory and Regulatory Requirements Governing the Healthcare Professions

April 2, 2020
By Mohamed H. Nabulsi and Christopher G. Salloum

Late yesterday, Governor Murphy issued yet another sweeping and unprecedented Executive Order, No. 112, in an attempt to facilitate the State’s war against COVID-19 by removing regulatory barriers to health care professionals joining the State’s efforts and by providing protections for front line health care responders.

1. Advanced Practice Nurses

For the duration of COVID-19 crisis, the Governor has suspended and waived the following statutory requirements that may serve to limit the scope of practice of advanced practice nurses (APNs):
  • The requirement that an APN enter into a joint protocol with an individual collaborating physician who is present or readily available through electronic means.
  • The requirement that an APN include the name, address, and telephone number of a collaborating physician on prescriptions or orders.
  • The requirement that APNs review patient charts and records with the collaborating physician.
  • The requirement that the APN obtain the authorization or written approval from a collaborating physician in order to dispense narcotic drugs for maintenance treatment or detoxification treatment or to determine the medical necessity for services for treatment of substance use disorder.
Please note that these requirements are suspended and waived insofar as APNs are “acting within the scope of their education, training, experience, and competence.” In other words, an APN who is treating patients for conditions or in a setting beyond the scope of the APN’s education, training, experience, and competence, then these requirements are not waived and suspended and should still be followed.

2. Physician Assistants

For the duration of COVID-19 crisis, the Governor has suspended and waived the following statutory requirements that may serve to limit the scope of practice of physician assistants (PA):
  • The requirement that a PA obtain physician suspension.
  • The requirement that a PA enter into a signed delegation agreement limiting the scope of practice to procedures enumerated in the agreement and customary to the supervising physician’s medical specialty, delegated or explicitly authorized.
  • The requirement that a PA obtain authorization to order or prescribe a controlled dangerous substance.
  • The requirement that a PA limit the assistance provided in the operating room.
Please note that these requirements are suspended and waived insofar as PAs are “acting within the scope of their education, training, experience, and competence.” In other words, a PA who is treating patients for conditions or in a setting beyond the scope of the PA’s education, training, experience, and competence, then these requirements are not waived and suspended and should still be followed.

In addition, the requirements related to physicians’ supervisory responsibility over PAs are suspended and waived as they apply to both physicians and PAs, to the extent that they would otherwise apply, for the duration of the COVID-19 crisis.

3. Temporary and Expedited Licensure for Retired Licensees and Physicians Licensed Abroad
  • For the duration of the COVID-19 crisis, the Division of Consumer Affairs (DCA) is authorized to issue a license to practice medicine and surgery to physicians who are licensed in another country and are good study so long as the physician applicant completes an application issued by the Board or the DCA and certifies that he or she has engaged in practice for at least five years and has engaged in clinical practice within the last five years.
  • For the duration of the COVID-19 crisis, the DCA is authorized to reactivate, on a temporary basis, the license of any healthcare professional who retired from practice in the last five years, either by electing to place their license in inactive status or by allowing their license to lapse.
  • To facilitate the temporary reactivation of a retired healthcare professional’s license or the issuance of a temporary license to a physician licensed in another country, the Governor has suspended and waived various statutory requirements, including, without limitation, fee requirements, continuing education requirements, and most importantly, the requirements pertaining to liability insurance for physician and physician assistants.
  • The requirement to hold a controlled dangerous substance registration as a precondition to registering with the New Jersey Prescription Monitoring Program is suspended and waived for any healthcare professional with prescribing authority who is granted an expedited temporary license by DCA and who holds a current valid DEA registration.
4. Civil Immunity
  • To provide legal protection to healthcare workers and the facilities where they work, the Governor has immunized from civil liability all healthcare workers, including those PAs and APNs acting outside the ordinary scope of their license pursuant to the Governor’s Order, for “any damages alleged to have been sustained as a result of the individual’s acts or omissions undertaken in good faith, whether or not within the scope of the licensee’s practice, in the course of providing healthcare services in support of the State’s COVID-19 response.”
  • The Governor has also immunized healthcare facilities, modular treatment facilities, and any other site designated by the Commissioner of the Department of Health for temporary use for the purpose of providing essential services in support of the State’s COVID-19 response, from civil liability for any damages alleged to have been sustained as a result of an act or omission undertaken in good faith by one of such facilities’ agents or employees in the course of providing services in support of the State’s COVID-19 pandemic.
  • Notably, this grant of immunity is retroactive nunc pro tunc to March 9, 2020, the date that the Governor declared the State of Emergency and Public Health Crisis.
  • The Order’s grant of immunity does not apply to acts or omissions that constitute a crime, actual fraud, gross negligence, or wilfull misconduct.
Further Executive Action Is Coming

As the COVID-19 pandemic continues to accelerate, we expect that the Governor will continue to take any executive action that he deems necessary and appropriate to facilitate the State’s war against COVID-19. We will keep you updated of any and all future developments related to the healthcare space.

If you have any questions, please don’t hesitate to contact us.
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