If you have any questions about the issues discussed in this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

As a follow-up to yesterday’s blog post, the New Jersey Department of Health (“NJDOH”) issued its guidance on the resumption of elective surgeries in hospitals and licensed ambulatory surgery centers.  As we mentioned yesterday, the Division of Consumer Affairs (“DCA”) issued guidance addressing the resumption of (1) medically necessary or therapeutic services and (2) elective procedures in the office setting.   Both guidance documents are similar in many respects, but the NJDOH’s guidance for performing elective procedures in licensed ambulatory surgery centers (“ASCs”) adds several requirements.

First, an ASC has to confirm with the hospital that it has a transfer agreement with the hospital that meets the downward trajectory calculations set forth in Section B of NJDOH’s guidance.   Also, before each surgery day, the ASC must confirm and document that the hospital has the appropriate number of intensive care unit (ICU) and non-ICU beds to support its potential need for emergent transfers, personal protective equipment, ventilators, medications, and trained staff to treat all patients.

Second, the NJDOH’s guidance, similar to the DCA’s guidance, requires ASCs to prioritize procedures, but the prioritization criteria are somewhat different.  Compare NJDOH’s guidance in Section C(1) to the DCA’s guidance in Section 1(d).

Third, the NJDOH guidance states that ASCs cannot perform procedures on confirmed COVID-19 patients regardless of whether the patient is asymptomatic.  The DCA’s guidance recommends that providers postpone any elective surgery for confirmed COVID-19 asymptomatic patients if, in the provider’s professional judgment, a postponement will unlikely result in an adverse outcome.

Fourth, although both guidance documents require testing, the NJDOH guidance specifically states each patient must be tested (specimen collected and results received) within a 96-hour maximum before a scheduled procedure with a preoperative COVID-19 RT-PCR test and ensure COVID-19 negative status.  In connection with the testing, the NJDOH guidance requires patients to self-quarantine, among other things, after the testing and up until the day of surgery.

Please visit Riker Danzig’s COVID-19 Resource Center to stay up to date on all related legal issues.