New York, New Jersey and Connecticut Allow Elective Surgeries in Many Outpatient Settings

May 20, 2020


New York:
In March, Governor Andrew Cuomo had issued a ban on elective surgery in general hospitals, ambulatory surgery centers (“ASCs”), diagnostic and treatment centers and office based surgery settings throughout New York. As of May 20, 2020, Governor Cuomo has announced that elective surgeries and non-urgent procedures were permitted to restart in most counties of New York (including most upstate counties and Suffolk, Nassau and Westchester counties) in all ambulatory settings. In furtherance of the resumption of elective procedures, the New York State Department of Health (“NYDOH”) has issued separate guidance for general hospitals and ambulatory facilities regarding the requirements for performance of elective surgeries and non-urgent procedures. The guidance addresses important issues such as COVID-19 testing for patients, employee screening, PPE, infection control and social distancing.

New Jersey:
Governor Phil Murphy is similarly allowing resumption of elective surgeries. Specifically, pursuant to Executive Order No. 145, hospitals and ambulatory settings are permitted to gradually resume the full scope of their services beginning May 26, 2020, when possible and safe to do so in accordance with New Jersey Department of Health’s (“NJDOH”) Guidance. Such facilities must adhere to a number of requirements before resuming elective surgeries and invasive procedures in order to minimize the spread of COVID-19 and to ensure such facilities have sufficient capacity to deal with any future surges. For instance, ASCs should not perform procedures on COVID-19 positive patients and must document before each surgery day that they have a transfer agreement with an acute healthcare facility, which must have the appropriate number of intensive care unit (“ICU”) and non-ICU beds to support potential need.

Healthcare professionals are also permitted to resume non-urgent care and elective procedures in office settings but must take precautions to protect patients and staff from COVID-19 in accordance with New Jersey Division of Consumer Affair’s (“NJDCA”) Guidance. Healthcare professionals must, among other things, facilitate social distancing, promote enhanced office cleaning and disinfection practices, establish rigorous protections for staff and stay informed on all relevant guidance. Healthcare professionals that have direct contact with a patient’s face, eyes, or mouth (e.g., dentists, otolaryngologists and eye care professionals) must implement additional safeguards as set forth in NJDCA’s Guidance.

Although there was no formal Executive Order ending elective surgical cases in Connecticut, the Connecticut state government did communicate the message that only urgent and emergent cases were to be done in ASCs during the pandemic. Connecticut is reemphasizing hospitals and ambulatory surgery centers to follow the guidance from Center for Medicaid and Medicare Services (“CMS”), the Center for Disease Control and the American College of Surgeons to ensure that necessary surgical care resumes safety and effectively once a 14-day decline has been achieved and when adequate testing and PPE exists to protect patients and providers alike.

The full-text of the guidance materials referenced in this alert is available at the following links:
• NYDOH – Hospitals:
• NJDOH – Hospitals:
• NJDOH – Ambulatory:
• NJDCA – Healthcare Professionals:
• CMS Guidance:
• Joint Guidance from Professional Societies:

Click here to register for Garfunkel Wild’s Webinar “Practical Aspects for ASCs and OBS Reopening” on Thursday, May 21, 2020, at 4:00 p.m.

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