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N.J. Order Suspends Elective Medical Procedures, Seeks Medical Supplies From Businesses

Client Alert

Authors: Barry H. Boise, Melissa A. Chuderewicz and Samuel D. Harrison

3/24/2020
N.J. Order Suspends Elective Medical Procedures, Seeks Medical Supplies From Businesses

On March 23, New Jersey Gov. Phil Murphy issued Executive Order 109 — the state’s latest directive relating to COVID-19. The order requires certain businesses to provide an inventory of medical supplies to the state by March 27, 2020, and suspends all elective medical procedures after 5 p.m. on March 27. Acting on powers created through Executive Order 103, which declared a public health emergency and state of emergency in New Jersey, Executive Order 109 states, in relevant part, as follows:

  • All businesses or nonhospital health care facilities “should undertake an inventory” of “Personal Protective Equipment (PPE), ventilators, respirators, or anesthesia machines that are not required for the provision of critical health care services.” The inventory should be provided to the state no later than 5 p.m. on Friday, March 27, 2020. (E.O. 109, ¶ 7).

  • There are to be no “elective surgeries or invasive procures, whether medical or dental” performed after 5 p.m. on Friday, March 27, 2020 regardless of whether they are already scheduled or not. (E.O. 109, ¶¶1 & 6).

  • Each hospital or ambulatory surgery center is required to establish written guidelines to ensure adherence to Executive Order 109, and must submit these guidelines to the Department of Health. The guidelines should include, in consultation with the treating provider, whether a procedure is elective under the order. (E.O. 109, ¶ 3).

  • The director of the Division of Consumer Affairs has enforcement authority. (E.O. 109, ¶ 8).

  • Penalties for violating the order include up to six months’ imprisonment and a fine of $1,000. (E.O. 109, ¶ 12).

The requirement for private entities to submit an inventory of medical supplies may signal that the governor is considering exercising his powers under the New Jersey Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33, et. seq., to commandeer and utilize personal property in response to the declared COVID-19 emergency. Businesses subject to the order include, but are not limited to, dental facilities, construction facilities, research facilities, office-based health care and veterinary practices, and institutions of higher learning.

The Office of Emergency Management is tasked with establishing the process by which entities subject to the inventory requirement can submit their inventories. At the time of publication, that process had not been posted on the OEM’s website.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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