New Jersey Update, Including Provider Immunity and New Nursing Home Laws

As COVID-19 restrictions are being lifted on national and state levels, health care providers have to start considering that the immunity provided to them regarding COVID-19 may be lifted in the near future. New York already abrogated its immunity and New Jersey is starting to consider doing the same.

In addition, New Jersey has added even more reporting requirements on nursing homes, has made the process for transferring ownership more burdensome, and has increased the restrictions for a third party to manage the nursing home.

For more information about this blog post, please contact Khaled J. KleleRyan M. MageeLabinot Alexander Berlajolli, or Brianna J. Santolli

New Jersey to Consider Ending Provider Immunity

The New Jersey Senate is considering S3731, which will end the civil immunity provided to certain health care professionals and health care facilities related to COVID-19. We will keep track of this bill as it makes its way through the legislative process. 

Overhaul of Nursing Home Licensure and Reporting Requirements, Including Restrictions on Transferring Management Control

A4477, which was signed into law, revises the licensure and reporting requirements for nursing homes. Specifically, the new law adds requirements for the sale of a nursing home. Prior to transferring ownership of a nursing home, the prospective new owner must submit an application to the Department of Health (“DOH”) that meets the requirements set forth in the bill. Each transfer of ownership application shall be published on the DOH’s website and subject to a comment period of no less than 30 days. Significantly, the bill prohibits nursing homes from delegating substantial management control of its operations to a third party without prior written notice to the DOH, as set forth in the bill.

With respect to reporting, the bill requires that nursing homes report, among other things, their rates or average rates for the lease, rent, or use of land or other real property to the DOH. The DOH, as necessary, shall also identify nursing homes that may be in acute financial distress or at risk of filing for bankruptcy protection by requiring them to report, within five business days, any default in the punctual payment when due of any: (1) debt service payment, where the debt is secured by real estate or assets of the nursing home; (2) rent payment; (3) payroll; or (4) payroll tax obligation.

Conditional Veto of Hospital Wrap-Around Services

In our previous Update, we noted that the New Jersey State Assembly and Senate passed S1676, which allows hospitals to construct housing and provide wrap-around services for individuals who are homeless or housing insecure.  The Governor recently issued a conditional veto of this bill. 

Opioid Antidote Prescriptions

S2323, which was signed into law, amends N.J.S.A. 24:21‑15.2. The amendment requires practitioners who prescribe an opioid drug to a patient to contemporaneously issue a prescription for an FDA‑approved opioid antidote for the reversal of an overdose, if: (a) the patient has a history of substance use disorder; (b) the prescription is greater than 90 morphine milligram equivalents daily; or (c) the patient holds a current, valid prescription for a benzodiazepine drug that is a Schedule III or Schedule IV controlled dangerous substance. The practitioner is not required to prescribe an opioid antidote more than once per year, but is permitted to do so upon the patient’s request or the practitioner’s determination that there is a clinical or practical need for the additional prescription.

Temporary Rule Waiver/Modification

53 N.J.R. 459(a):  Executive Order No. 103 (2020), and subsequent Executive Orders issued in response to the COVID‑19 pandemic, vested agency heads with the authority to temporarily waive, suspend, or modify any existing rule, where enforcement thereof would be detrimental to the public welfare during the pandemic. Pursuant to that authority, the New Jersey Department of Health is issuing this temporary rule modification, effective March 4, 2021, that waives the minimum volume requirements for existing invasive cardiac diagnostic facilities, cardiac surgical centers, and physicians practicing at these centers for the duration of the public health emergency. 

Any questions regarding the temporary rule waiver should be directed to the Certificate of Need and Healthcare Facility Licensure Program at CNL.InquiryWaiversIssued@doh.nj.gov.

New Jersey State Board of Pharmacy Proposed Rules

The New Jersey State Board of Pharmacy (“Board of Pharmacy”) has proposed a series of rules:

  • 53 N.J.R. 495(a) would amend the fee schedule for out‑of‑state pharmacies by increasing the application fees for permits, change of ownership/name, and change of location from $175 to $275. 
  • 53 N.J.R. 496(a) would eliminate the one‑year waiting period before licensure applicants who have failed either the North American Pharmacist Licensure Examination (“NAPLEX”) or Multistate Pharmacy Jurisprudence Examination (“MPJE”) three or more times may attempt to retake the examinations.
  • 53 N.J.R. 497(a) would amend the retail pharmacy labeling requirements for an opioid medication to include a red or yellow label or sticker affixed to the container with the warning “Opioid Risk of Addiction and Overdose” written in a clearly readable black color font.
  • 53 N.J.R. 498(a) would remove the requirement that a pharmacist, at the time of dispensing, obtain the signature of a patient or caregiver that counseling was provided or refused.

Comments are due for all of the proposed rules by June 4, 2021.