Tuesday evening, April 14, 2020, New Jersey Governor Murphy signed into law Bill No. S2333, which provides health care professionals, facilities, and systems civil immunity for care given to those affected by COVID-19. The new law additionally authorizes the Director of Consumer Affairs to issue orders temporarily suspending professional and occupational licensing registration requirements. The new law took effect immediately upon the Governor’s signing.
The immunity provisions are not intended to apply to medical services, treatment or procedures that are unrelated to the COVID-19 emergency and only apply to care delivered from March 9, 2020, through the yet-to-be-determined end of the Governor’s state of emergency declared in Executive Order 103 of 2020.
The law includes the following immunity protections:
- Healthcare professionals shall not be liable for damages for injuries and/or deaths sustained as a result of an act or omission in the course of providing medical services in support of New Jersey’s response to the COVID-19 pandemic.
- Individual health care facilities, and health care systems that own such facilities, shall not be liable for damages for injuries and/or deaths allegedly sustained as a result of an act or omission by one or more of its agents, officers, servants, representatives or volunteers to the extent that such individual is immune under the law’s health care professional immunity provisions.
- Immunity also extends to acts and/or omissions undertaken in good faith by health care professionals, facilities, and systems to treat patients affected by COVID-19 and to prevent the spread of COVID-19 during the public health emergency. This immunity covers: (1) engaging in telemedicine or telehealth; and (2) diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.
- It is important to note that the immunity provisions do not cover acts or omissions that constitute a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct. To defend against a gross negligence or recklessness allegation, the ability of a provider to show its good faith adherence to Federal and State protocols for delivery of care by health care professionals and any Department of Health guidelines would be important.
- Any health care facility or system (and its agents, officers, employees, representatives and volunteers) that adopts and adheres to a scarce critical resource allocation policy shall not be liable, civilly or criminally, for injury caused by an act or omission related to the allocation of scarce medical resources. The new law defines a “scarce critical resource allocation policy” as a policy, protocol or guideline for the allocation of ventilators, intensive care unit beds, or other medical resources or supplies that may be in limited supply and high demand during a public health emergency. The policy must incorporate, at a minimum, the Health Commissioner’s core principles identified in an executive or administrative order. The guidelines issued by the Commissioner of Health for the creation of scarce critical resource allocation policies on April 11, 2020, can be found here.
In addition, the new law grants the Director of the Division of Consumer Affairs, during state of emergency, the authority to temporarily suspend or modify rules relating to the issuance of licenses and certificates for any profession or occupation for which such licenses or certificates are issued by the Division or any board or other body within the Division.
Finally, S2333 also grants the Commissioner of Health, during the state of emergency related to the COVID-19 outbreak, the authority to (1) issue a provisional certification to any emergency medical technician whose certification has previously expired or any paramedic whose certification expired within the past five years; (2) temporarily reactivate a paramedic certification for an individual whose certification was placed on an inactive status within the past five years; and (3) grant temporary reciprocity to certain paramedics.
Ballard Spahr’s Labor and Employment Group and Health Care Group are closely following state and local COVID-19 legislation and other developments related to COVID-19 as they impact the health care workforce.
