COVID-19 Vaccination Requirement Lifted for Employees in Health Care Settings
On June 12, 2023, Governor Murphy signed Executive Order No. 332 (the "EO"), which lifted the requirement that healthcare settings maintain a policy requiring their workers to be up to date on their COVID-19 vaccinations. Healthcare settings covered by the EO include, but are not limited to, long-term care facilities, psychiatric hospitals, ambulatory surgical centers, certain substance abuse disorder treatment facilities, urgent care clinics, licensed home health agencies and registered health care service firms operating within New Jersey.
The changes follow last week's Final Rule by the Centers for Medicare & Medicaid Services ("CMS"), announcing it will no longer enforce its rule requiring most Medicare and Medicaid-certified providers' and suppliers' staff to be vaccinated against COVID-19 to participate in Medicare and Medicaid programs. Additionally, in April, the U.S. Food and Drug Administration ("FDA") issued an amended Emergency Use Authorizations ("EUAs") for COVID-19 vaccines, clarifying that most individuals, regardless of prior vaccination status, may receive a single dose of such vaccines. Thus, EO No. 332 is meant to align New Jersey's position on COVID-19 vaccination requirements with recent Federal changes.
Despite the lift of the vaccination requirements, individual employers may still choose to require COVID-19 vaccinations or testing that include additional or stricter requirements.
A full copy of the EO can be found here.
SCOTUS Upholds Ability to Bring §1983 Claims Against Nursing Homes
On June 8, 2022, the Supreme Court of the United States ("SCOTUS") ruled certain provisions of the Federal Nursing Home Reform Act ("FNHRA") unambiguously confer individual federal rights enforceable under 42 U.S.C. §1983 ("§1983"). In doing so, SCOTUS quashed a novel argument by petitioner-defendants which would have significantly narrowed the ability of private individuals to bring certain §1983 suits.
In Health & Hosp. Corp. v. Talevski, plaintiff-respondent had sued a government-owned nursing home in Indiana, alleging the nursing home had negligently administered psychotropic drugs to her husband, a dementia patient, and had tried to transfer him to a distant facility without his family's consent. No. 21-806, 2023 U.S. LEXIS 2421 (June 8, 2023). Significantly, plaintiff-respondent's suit contained several §1983 claims applying provisions of FNHRA, claiming the nursing home had violated decedent's right to be free from unnecessary chemical restraints (see 42 U.S.C. §1396r(c)(1)(A)(ii)) and right to be discharged or transferred only when certain preconditions are met. (see 42 U.S.C. §1396r(c)(2)).
Defendant-petitioners, the Health and Hospital Corporation of Marion County ("HHC"), had argued that private individuals lacked standing to enforce provisions of FNHRA via a §1983 suit. Although the District Court for the Northern District of Indiana ruled in favor of HHC, the Seventh Circuit reversed and remanded the case upon finding that certain provisions of FNHRA conferred a private right of action under §1983. Talevski v. Health & Hosp. Corp., 6 F.4th 713 (7th Cir. 2021). SCOTUS affirmed the Seventh Circuit's ruling, holding that FNHRA "unambiguously" creates rights that are enforceable via §1983 suits.
The full opinion is available here.
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