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March 2020

Governor Murphy Issues Executive Order 109 Requiring the Suspension of Elective Surgeries and Invasive Procedures

Last updated March 27, 2020

On March 23, 2020, New Jersey Governor Phil Murphy issued Executive Order 109, requiring that all adult elective medical and dental surgeries and all adult invasive procedures be suspended as of March 27, 2020 at 5:00 p.m. For purposes of the Order, an “elective” surgery or “invasive procedure” is defined as a surgery or procedure that 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 therefore leaves it to the physician’s or dentist’s medical judgment to assess the potential risk to the patient and as to whether a postponement of the surgery or procedure is the right thing to do.

The American College of Surgeons has recommended that “the risk to the patient should include an aggregate assessment of the real risk of proceeding and the real risk of delay, including the expectation that a delay of 6 – 8 weeks or more may be required to emerge from the environment in which COVID-19 is less prevalent.” The Centers for Medicare and Medicaid Services has issued similar guidance with a “tiered framework” to determine whether a procedure should be performed,

Executive Order 109 also requires that, in determining whether to perform surgeries or invasive procedures, providers consider any potential post-operative complications that could place additional stress on local hospitals that might not have the capacity to handle transfer patients. The Order further requires that providers coordinate the need for any post-surgery or procedure admissions with local hospitals prior to performing any surgery or invasive procedure. This requirement follows the ASCA’s guidance recommending that “facilities reach out to local hospitals and establish a line of communication that ensures coordination in managed care during the pandemic.”

Notably, the New Jersey Department of Health has yet to issue guidelines or further clarification of the Order. However, the Order itself states that hospitals and ambulatory surgery centers will be required to formulate and submit a plan to the NJDOH that delineates “essential” from “elective” surgeries or procedures.

In light of the foregoing, absent any further guidance or clarification from the NJDOH, we would recommend postponing any surgery or procedure that can be safely postponed without additional significant risk to the patient, and treating patients only where the anticipated delay would cause significant harm or substantially worsen the patient’s prognosis.

For additional information pertaining to the coronavirus outbreak, please visit CSG's COVID-19 Resource Center.


This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.

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