New Jersey Agencies Loosen Telemedicine/Telehealth Restrictions During COVID-19 Emergency
Last updated March 29, 2020
As a result of legislation New Jersey Governor Murphy signed into law last week (P.L.2020, c.3), various New Jersey agencies have temporarily loosened telemedicine/telehealth restrictions for the duration of the COVID-19 public health emergency. Similar action was taken last week by the Centers for Medicare and Medicaid (discussed in CSG alert here). The following briefly reviews the status of New Jersey’s telemedicine law prior to the COVID-19 public health emergency and then highlights the key features of the New Jersey agency action taken thus far in response to COVID-19.
Background – NJ Telemedicine Law
New Jersey’s telemedicine and telehealth1 law (N.J.S.A. 45:1-61 et seq.) (the “Act”), which became effective July 21, 2017, sets certain standards for the use of telemedicine/telehealth and directs the State professional licensing boards to adopt rules and regulations to implement the Act. Thus far, regulations have been implemented only with respect to the following professions:
- Hearing aid dispensers (N.J.A.C. 13:35-8.21 et seq.);
- Athletic trainers (N.J.A.C. 13:35-10.26 et seq.)
- Orthotists/prosthetists (and related professions) (N.J.A.C. 13:44H-11.1 et seq.); and
- Psychoanalysts (N.J.A.C. 13:42A-8 et seq.).
The New Jersey Board of Medical Examiners proposed regulations on May 6, 2019 (51 N.J.R. 561(a)), but those regulations have not yet been finalized.
Key New Jersey Agency Action Taken In Response to COVID-19
Division of Medical Assistance and Health Services (“DMAHS”)
DMAHS made the following key announcements with respect to Medicaid Managed Care Organizations, the Medicaid Fee for Service Program and NJ FamilyCare program (see DMAHS’s full announcement here):
- Location: Previous DMAHS guidance restricted the locations at which a NJ Medicaid/NJ FamilyCare beneficiary could receive telemedicine/telehealth services. For the duration of the COVID-19 emergency, clinicians are now permitted to provide telemedicine/telehealth from any location and individuals are permitted to receive services via telemedicine/telehealth at any location.
- Technology: The Act and associated regulations have been interpreted to limit the use of certain technologies for telemedicine/telehealth. For instance, the definition of “telemedicine” excludes “the use, in isolation, of audio-only telephone conversation.” DMAHS is specifically permitting the use of “alternative technologies for telehealth such as an audio only telephone or video technology commonly available on smart phones and other devices,” stating that health care practitioners “now have the flexibility to use all available and appropriate technological devices to offer telehealth as long as these services meet the standard of care.” DMAHS also referred to the Federal HIPAA enforcement waiver with respect to the good faith use of technology for telemedicine/telehealth during the COVID-19 emergency (which was discussed in a previous CSG Alert here).
- Establishing a Provider/Patient Relationship: The Act and associated regulations require a health care provider to review a patient’s medical history and medical records prior to an initial telemedicine encounter. DMAHS stated this is no longer required for the duration of the COVID-19 emergency. Providers must use appropriate clinical judgment to obtain relevant medical history and review information, but the unavailability of records does not prohibit the provider from engaging in a telemedicine/telehealth encounter.
- Federally Qualified Health Centers (“FQHCs”): DMAHS has waived face-to-face and related requirements for FQHCs and will reimburse FQHCs at the ordinary Medicaid rate for telemedicine/telehealth services.
- Billing: Health care providers may bill for telemedicine/telehealth services using the same billing codes and rates that apply to face-to-face services and are not required to use any additional procedure codes or modifiers.
Department of Banking and Insurance (“DOBI”)
DOBI is requiring health insurance carriers to do the following (DOBI’s full announcement is here):
- Review their telemedicine and telehealth networks to ensure adequacy;
- Cover – without copayments, deductibles, or coinsurance – any healthcare services or supplies delivered or obtained via telemedicine or telehealth;
- Encourage their network providers to utilize telemedicine or telehealth services wherever possible and clinically appropriate; and
- Permit and encourage telehealth services that are rendered by a provider in any manner that is practicable, including, if clinically appropriate, by telephone.
DOBI is prohibiting carriers from doing the following:
- Imposing any specific requirements on the technologies used to deliver telemedicine and/or telehealth services (including any limitations on audio-only or live video technologies);
- Providing lower rates of payment to in-network providers for services delivered via telemedicine or telehealth than the rates of payment established by the carrier for services delivered face-to-face;
- Imposing any restriction on the reimbursement for telehealth or telemedicine that requires that the provider who is delivering the service to be licensed in a particular state; and
- Requiring prior authorizations for medically-necessary treatment that is delivered via telemedicine or telehealth.
Department of Consumer Affairs (“DCA”)
DCA is waiving certain regulatory requirements to permit individuals who hold current healthcare licenses and certifications in good standing in other jurisdictions and have been practicing within the last five years to obtain New Jersey licenses by completing a form located here. Under this process, certain requirements such as criminal history background checks and licensing fees are waived. Eligible practitioners will be deemed licensed upon submission of the completed form and such license will be valid for 180 days, with an additional 180-day extension available upon written request. This accelerated process is available with the following professional boards:
- Acupuncture Examining Board
- Alcohol and Drug Counselor Committee
- Athletic Training Advisory Committee
- Audiology and Speech-Language Pathology Advisory Committee
- New Jersey State Board of Dentistry
- Genetic Counseling Advisory Committee
- Hearing Aid Dispensers Examining Committee
- State Board of Marriage and Family Therapy Examiners
- State Board of Medical Examiners
- New Jersey Board of Nursing
- Occupational Therapy Advisory Council
- State Board of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians
- New Jersey State Board of Optometrists
- Perfusionists Advisory Committee
- Board of Pharmacy
- State Board of Physical Therapy Examiners
- Physician Assistant Advisory Committee
- State Board of Polysomnography
- Professional Counselor Examiners Committee
- Certified Psychoanalysts Advisory Committee
- State Board of Psychological Examiners
- State Board of Respiratory Care
- State Board of Social Work Examiners
DCA also issued guidance to health care providers with respect to COVID-19 that encourages the delivery of health care services through alternative methods, including telemedicine, telehealth, and telephone consultations. Specifically, DCA states that the initial assessment of symptomatic patients should be performed via telephone or other electronic means whenever possible.
For additional information pertaining to the coronavirus, please visit CSG’s COVID-19 Resource Center.
This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.
1 The Act defines the terms “telehealth” and “telemedicine” as follows:
“Telehealth” means the use of information and communications technologies, including telephones, remote patient monitoring devices, or other electronic means, to support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services in accordance with [the Act].”
“Telemedicine” means the delivery of a health care service using electronic communications, information technology, or other electronic or technological means to bridge the gap between a health care provider who is located at a distant site and a patient who is located at an originating site, either with or without the assistance of an intervening health care provider, and in accordance with [the Act].. “Telemedicine” does not include the use, in isolation, of audio-only telephone conversation, electronic mail, instant messaging, phone text, or facsimile transmission.”