On March 19, 2020, New Jersey Governor Phil Murphy signed two bills into law, A-3860 and A-3862, which expand access to telehealth services during the COVID-19 public health emergency. In addition, A-3862 allows professional and occupational licensing boards to expedite licensure of out-of-state professionals whenever the Governor of New Jersey has declared a state of emergency. These laws modify the various requirements for the provision of telehealth services which were established in the 2017 New Jersey Telemedicine Law (N.J.S.A. 45:1-60-64). On March 20, 2020, Governor Murphy also signed into law A-3843, which requires New Jersey Medicaid and commercial insurers to provide coverage for telemedicine services without cost sharing during the COVID-19 public health emergency.
In connection with the passage of A-3860 and A-3862, on March 22, Governor Murphy announced departmental actions from various state departments, including the Department of Human Services, Department of Banking and Insurance, and the New Jersey Division of Consumer Affairs, all of which aim to ensure individuals in New Jersey have access to telehealth services to the greatest extent possible during the COVID-19 emergency.
Waivers for Provision of Telehealth and Telemedicine Services
Under A-3860, any health care practitioner is permitted to provide telemedicine and telehealth services for the duration of the COVID-19 emergency. A health care provider who is not licensed to practice in New Jersey may provide telemedicine services provided that:
- The health care practitioner is validly licensed or certified to provide health care services in another state or territory of the United States and is in good standing in that jurisdiction;
- The health care services provided by the health care practitioner using telemedicine are within the practitioner’s authorized scope of practice wherever the practitioner is licensed;
- The health services provided are limited to services related to screening for, diagnosing or treating COVID-19 unless the health care practitioner already has a provider-patient relationship with the patient unrelated to COVID-19; and
- In the event the provider determines during a telemedicine encounter that the encounter will not involve services related to screening for, diagnosing or treating COVID-19, the provider must advise the patient that the provider is not authorized to provide services to the patient and recommend that the patient initiate a new telemedicine encounter with a provider licensed in New Jersey.
In addition, A-3860 requires the Commissioner of Health and the Director of the Division of Consumer Affairs to waive any requirements in state law or regulation necessary to facilitate the provision of health care services using telemedicine and telehealth during the emergency, including any privacy requirements that would limit the use of electronic or technological means that are not typically used in the provision of telemedicine. Below is a list of the major requirements in the New Jersey Telemedicine Law, and the way in which each requirement is affected by the new laws enacted for the duration of the COVID-19 public health emergency.
Establishing a Provider-Patient Relationship: Under New Jersey’s Telemedicine Law, a provider must establish a proper provider-patient relationship to engage in telemedicine. Under the new emergency legislation, a provider is not required to review a patient’s medical history and medical records prior to an initial telemedicine encounter. As noted by the Department of Human Services in its “Temporary Telehealth Guidelines” Newsletter issued on March 21, 2020, “providers should use clinical judgment to obtain relevant medical history and review available medical records to meet applicable standards of care, but the unavailability of records should not be a barrier to establishing a provider-patient relationship during the declared state of emergency.”
Provider-Patient Location: Pursuant to the “Temporary Telehealth Guidelines” Newsletter issued by the Department of Human Services, the state has waived any site of service requirements to allow licensed providers to provide telemedicine from any location, and individuals can receive services via telehealth at any location.
Permitted Technology: Under New Jersey’s Telemedicine Law, there are limitations on the types of communication devices that can be used in the delivery of telemedicine. Under the new law, there are no restrictions during the public health emergency on the types of communication devices that can be used for the delivery of telemedicine. Therefore, pursuant to the Governor’s announcement on March 22, any technology, including the telephone, may be used to provide telemedicine services.
Payment for Telemedicine Services: A-3860 requires that any amount charged for services provided under the bill be reasonable and consistent with the ordinary fees typically charged for that service. In the event a provider who is not licensed to practice in New Jersey is required to terminate a telemedicine encounter because the encounter does not involve the provision of services related to screening, diagnosing or treating COVID-19, the provider cannot bill for any services provided during the encounter. In addition, A-3843 states that New Jersey Medicaid and commercial insurers must provide coverage and payment for the delivery of health care services through telemedicine, and no cost-sharing requirements will be imposed.
Expedited New Jersey Licensure Process for Out-of-State Professionals
A-3862 further expands access to health care during a declared state of emergency by allowing professional and occupational licensing boards to expedite licensure of out-of-state professionals during a state of emergency or a public health emergency. An individual applying for a specific license, certificate of registration or certification in New Jersey must have a corresponding license, certificate of registration or certification in another state in order to be eligible for expedited licensure. Pursuant to the Division of Consumer Affairs March 20, 2020 Press Release, licenses granted pursuant to this process will be valid for 180 days, with an additional 180-day extension available upon written request. The law gives the Director of Consumer Affairs and the applicable licensing boards the ability to temporarily waive certain requirements normally required in the licensure process, such as licensing fees and certain licensing requirements.
These new state laws and departmental actions reduce or eliminate prior legal and regulatory barriers and reimbursement uncertainty for telemedicine services during the COVID-19 emergency. In combination with recent federal actions, these laws will significantly increase access to critically needed health care services in a safer way for patients and their health care providers.
Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.