New Jersey Ends Vaccine Mandate And Nursing Home Litigation – Healthcare

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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