By Richard A. West
In response to the COVID-19 crisis, New Jersey Governor Philip D. Murphy has issued several executive orders to enable medical professionals to administer vital health care services to state residents while complying with the social distancing measures essential for limiting the spread of the novel coronavirus within the state.
Telehealth has emerged as a critical solution enabling New Jersey residents to safely access a wealth of medical services during the COVID-19 crisis. The use of telehealth during this pandemic will reduce unnecessary in-person encounters that may spread the virus. The New Jersey Division of Consumer Affairs (DCA), which oversees 51 professional and licensing boards, including the Boards of Medical Examiners, Nursing, and Respiratory Care Therapists, and the boards that license mental health professionals now strongly encourage providers to use telehealth whenever possible for the duration of the public health crisis.
Here is a brief overview of New Jersey regulations regarding telehealth services during the COVID-19 crisis:
The definition of telehealth
New Jersey’s 2017 law (P.L. 2017, c.117) defines “telehealth” as 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, as allowed by New Jersey law. The law defines “telemedicine” as 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, as allowed by New Jersey law, except that “telemedicine” does not include the use, in isolation, of audio-only telephone conversation, electronic mail, instant messaging, phone text, or facsimile transmission.
Technologies that may be used to deliver telehealth services
During the public health emergency related to COVID-19, New Jersey has relaxed the usual technological requirements for providing telehealth and telemedicine. Providers may now use a broader range of communication tools, including audio-only telephone or video technology commonly available on smart phones and other devices. While providers now have the flexibility to use all available and appropriate technologies, they must ensure that their choice of communication tools allows them to meet the applicable standard of care.
Protecting patient privacy in administration of telehealth services
HIPAA ordinarily requires that the technologies used to deliver telehealth meet rigorous privacy protection standards. However, on March 17, 2020, OCR announced that it will exercise its enforcement discretion and will not impose penalties for HIPAA violations against health care providers that in good faith provide telehealth using non-public facing audio or video communication product, such as FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype, during the nationwide public health emergency related to COVID-19. While providers now may choose to deliver telehealth through platforms that were previously off limits, public-facing platforms, such as TikTok, Twitch, Facebook Live, and Periscope, should not be used to provide telehealth even during the COVID-19 public health emergency. Further, providers must take all reasonable steps to avoid unauthorized disclosure of patient/client health information.
Establishing the provider-patient relationship via telehealth
New Jersey law requires a provider to establish a proper provider-patient/client relationship to engage in telehealth, which includes exchanging certain identifying information. Providers should use clinical judgment to obtain relevant medical/health history and review patient/client records available to meet applicable standards of care.
During the COVID-19 emergency, New Jersey is temporarily waiving the requirement that providers review a patient/client’s medical records prior to an initial telehealth encounter. Therefore, the unavailability of record is not a barrier to the establishment of a proper provider-patient/client relationship during the pandemic.
Types of care permitted via telehealth
During the COVID-19 crisis, providers have the flexibility to use all available and appropriate technologies to deliver telehealth assuming these technologies allow them to meet the standard of care. Providers may use phone-only encounters to establish a provider-patient/client relationship and to perform follow up care.
Location of care
During the COVID-19 emergency, neither the patient/client nor the provider must go to a specific location to engage in telehealth. New Jersey has waived site-of-service requirements for the Medicaid program to allow licensees to provide telehealth from any location and individuals to receive services via telehealth at any location.
The Standard of Care always applies
The standard of care applies whether a patient/client is seen via telehealth or in person. The standard is no different whether the encounter is via telehealth or in person. Providers should avoid telehealth if an in-person visit or physical exam is required.
Recordkeeping in telehealth
The recordkeeping standards do not change based on the setting by which the patient/client is seen. Providers must ensure that items such as relevant findings, tests ordered, treatment recommendations and consent are documented during telehealth services. Verification of a patient/client identity is extremely important in a telephone-only encounter. For example, collection of a patient or client driver’s license number and comparison of the number to practice records is a possible method of identification. Appropriate and detailed patient/client records are needed for billing. Board regulations regarding improper billing remain in effect.
A patient/client may give written or oral consent, and may do so in a digitized format, to the provider via telehealth. This consent must be documented in the patient/client record.
During the nationwide COVID-19 public health emergency, the U.S. Drug Enforcement Agency (DEA) is waiving some of its rules regarding the prescribing of controlled dangerous substances (CDS), Schedules II through V. At this time, DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met: 1) The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice; 2) The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and 3) The practitioner is acting in accordance with applicable federal and state laws. If the prescribing practitioner has previously conducted an in-person medical evaluation of the patient, the practitioner may issue a prescription for a CDS after having communicated with the patient via telemedicine, or any other means, so long as the prescription is issued for a legitimate medical purpose, the practitioner is acting in the usual course of his/her professional practice, and the practitioner complies with applicable federal and state laws.
Out-of-state practitioners licensed in New Jersey via the accelerated temporary licensure process established in response to COVID-19 need not hold a New Jersey CDS registration in order to prescribe CDS in New Jersey, so long as they hold an active DEA registration in good standing in their home state; have the authority to prescribe medications, including CDS, in their home state; and prescribe CDS consistent with the scope of practice for the applicable health care profession under New Jersey law and regulations. Such licensees are required to register with New Jersey’s Prescription Monitoring Program and comply with all applicable laws and rules when prescribing CDS or human growth hormone under the authority of their New Jersey temporary license.
Temporary Licensure of Out-of-State Telehealth Providers
Out-of-state providers can obtain an accelerated temporary license in New Jersey to provide care in person or using telehealth. DCA and several professional and occupational licensing boards have taken measures to accelerate licensure of out-of-state professionals, by waiving certain licensure requirements, including fees, during the COVID-19 emergency.
Medicaid/NJ FamilyCare and Telehealth Coverage
Health care providers may bill for any Medicaid billable service using the same billing codes and rates used for face-to-face services.
Providers are encouraged to check their licensing board website for additional information.
BMK has been advising licensed professionals in recent weeks with to regard to myriad issues arising from the COVID-19 crisis. Should you have a question, please contact Brown Moskowitz & Kallen partner Richard A. West at (973) 376-0909 ext. 1126 or mobile: (973) 229-7928.
This article is for informational purposes only and is not intended to constitute, and does not constitute, legal advice.