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May 2020

New Jersey Issues Guidance on Resuming Elective Surgeries and Invasive Procedures

Last updated May 28, 2020

On May 15, 2020, New Jersey Governor Phil Murphy issued an Executive Order allowing elective surgeries and invasive procedures to resume on May 26, 2020, subject to guidance developed by the New Jersey Department of Health (DOH) and the Division of Consumer Affairs (DCA).

Department of Health Guidance

In compliance with the Governor’s Order, the DOH issued separate guidance for hospitals and for ambulatory surgery centers to resume elective surgeries and invasive procedures. The guidance for both facilities sets forth the necessary conditions and eligibility requirements for a facility to resume elective surgeries, as well as guidance on how to ensure continued patient and staff safety.

Conditions for Facilities to Resume Elective Surgeries and Invasive Procedures:

Both hospitals and ambulatory surgery centers are required to implement certain conditions to resume elective surgeries. Both facilities are required to comply with state and CDC guidelines to protect against the spread of COVID, enforce social distancing in work areas and common areas, and implement an established plan for cleaning and disinfecting facilities and screening healthcare workers for COVID symptoms prior to using the facilities. Hospitals are additionally required to create non-COVID care zones where possible and remain prepared for future possible surges in COVID cases.

Eligibility to Resume Elective Surgeries and Invasive Procedures:

To be eligible to resume elective surgeries and invasive procedures, hospitals are required to have a sustained downward trajectory of COVID cases for 14 days. To remain eligible, hospitals must monitor capacity data relating to COVID cases from the three most recent days. Hospitals must additionally monitor the capacity data of available and staffed ICU, Critical Care and Medical Surgical beds. Ambulatory surgery centers are eligible to resume elective surgeries based on the capacity data (i.e., COVID-19 infection rates, number of hospitalizations, ER admissions, etc.) from the hospital with which the ambulatory surgery center has a transfer agreement, and must ensure that the hospital has sufficient ICU and non-ICU beds and ventilators.

Additional Requirements:

Both facilities are subject to additional requirements to ensure the safe resumption of elective surgeries. To help ensure consistency across cases, hospitals and ambulatory surgery centers must create a site-based governance group to establish a prioritization policy of surgical and procedural care. In prioritizing cases, the DOH also lists factors that the governing group can consider, such as specialties or previously cancelled or postponed cases. As part of its prioritization policy, hospitals must use a level system to rank the urgency of cases.

Hospitals are additionally required to separate COVID patients and non-COVID patients from each other. In contrast, ambulatory surgery centers are prohibited from performing elective surgeries on COVID positive patients. Both facilities are responsible for ensuring they have sufficient personal protective equipment (PPE) and must create a plan for the use of PPE by patients and healthcare workers consistent with CDC and DOH recommendations. Additionally, the facilities are required to ensure there is adequate staff for planned procedures. Ambulatory surgery centers must also have a transfer agreement with an acute healthcare facility in case of a second wave of COVID cases.

All patients undergoing an elective surgery must be tested for COVID no more than 96 hours before the procedure to ensure they are negative, and all procedures must be scheduled in a manner that allows for social distancing. Facilities must also counsel patients to self-quarantine following testing, and social distancing prior to surgery.

The full guidance for hospitals can be found here and ambulatory surgery centers here.

Division of Consumer Affairs Guidance

On May 18, 2020, the DCA issued its policy for resuming elective procedures in an outpatient setting. Similar to the DOH guidance, the DCA’s guidance includes necessary steps to ensure continued safety for patient and healthcare professionals. All healthcare professionals providing in-person patient care are required to adopt and comply with the following requirements:

  • Avoiding person-to-person contact in the office, including the continued utilization of telemedicine whenever possible, requiring patients to wear a face covering for in-person visits, screening patients for COVID symptoms upon arrival, and scheduling appointments in a manner that minimizes patient-to-patient contact.

  • Facilitate social distancing within the office through policies such as limiting the number of individuals in exam rooms, installing physical barriers, and arranging for contactless patient registration and payment.

  • Adopting enhanced office cleaning and disinfection, including adopting CDC guidelines for routinely cleaning and disinfecting high-touch areas, allowing sufficient time to clean between appointments, and maintaining staff levels sufficient to effectively perform cleaning and disinfecting protocols.

  • Establish rigorous protections for staff through measures including accommodating telework where possible, requiring clinical staff to wear appropriate PPE and training them on its use, and staggering schedules or rotations to reduce the number of people in the office at a given time.

  • Continued monitoring of developments and obligations at the state and federal level and developing a plan to respond to potential surges in COVID cases.

The DCA guidance also provides additional requirements for healthcare professionals performing elective surgery or invasive procedures in an outpatient setting that involve direct contact with a patient’s face, eyes or mouth, or presents a high risk of aerosolization. These requirements include deferring elective surgery or routine procedures in which a patient is COVID-19 positive or symptomatic (for 10 days from when the patient first experienced symptoms or 3 days after recovery) and postponing any elective surgery or procedure for asymptomatic patients if a postponement is unlikely to result in an adverse outcome.

The full DCA guidance can be found here.

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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