COVID-19: April New Jersey Telehealth Updates

As the landscape of providing care during the COVID-19 pandemic continues to evolve, our provider clients continue to request advice on the evolving local and federal legislation on telehealth so that they can continue to provide care to those in need.

We previously covered Governor Murphy’s March 16, 2020, Executive Order 104 and its impact on which healthcare providers can remain open during the COVID-19 pandemic; the related March 17, 2020, expansion of telemedicine on the federal level by the Centers for Medicare and Medicaid Service (“CMS”); commercial payer information on telemedicine reimbursement; and the relaxation of HIPAA violation enforcement by the Office for Civil Rights at the United States Department of Health and Human Services (“OCR”) known at the time of publishing here.

Subsequently on April 3, 2020, the State of New Jersey – Division of Consumer Affairs (“DCA”) provided additional details regarding the availability of telehealth and the scope of licensing required to practice telehealth with New Jersey patients. While certain aspects of New Jersey telehealth rules will remain the same during the COVID-19 pandemic, a number of requirements have been relaxed or changed during the pendency of the pandemic so that New Jersey patients have access to the care they need during these times.

Licensing Requirements for Telehealth

On April 1, 2020, Governor Murphy issued Executive Order 112, which provided DCA with the authority to expand the scope of licensing of healthcare professionals during the COVID-19 pandemic. During the state of Emergency the following licenses are temporarily reactivated:

  • Previously licensed New Jersey healthcare professionals (physicians, physician assistants, midwives, advance practice nurses, registered professional nurses, licensed practical nurses, respiratory care therapists, marriage and family therapist, professional counselors, rehabilitation counselors, alcohol and drug counselors, state certified psychoanalysts, psychologist, licensed clinical social workers, licensed social workers, and certified social workers) who retired from active practice within the last five years (by electing for an inactive status or allowing to lapse) so long as the healthcare professional submits the appropriate form. Once the application is granted and license reactivated, the license remains temporarily in effect without practice-based limitations until Governor Murphy deactivates the state of emergency declared by Executive Order 103 on March 9, 2020. Notably, this specific temporary license does not exclude providing telehealth services to patients in the state of New Jersey.
  • Foreign-licensed physicians (medical doctor, doctor of osteopathic medicine, or plenary-licensed equivalent in another county) who are licensed and in good-standing in another country so long as the physician submits the appropriate form. Once the application is granted and temporary license issued, the license remains temporarily in effect with specific practice-based limitations until Governor Murphy deactivates the state of emergency declared by Executive Order 103 on March 9, 2020. The practice-based limitations require that all care provided be in-person, clinical medical services in a New Jersey Department of Health-licensed facility (e.g., hospital, field hospital, longer term care facilities) or other location designated as an emergency health care center by the New Jersey Commission of Health. Notably, this specific temporary license does not extend to providing telehealth to patients in the state of New Jersey.

In addition to authorizing temporary licensing, the April 1, 2020, Executive Order 112 also temporarily expanded the scope-of-practice for practice nurses and physician assistants to allow them to practice more independently while the COVID-19 health emergency remains in effect by suspending and waiving certain statutory provisions. For practice nurses these changes include removing the following requirements to the extent they would otherwise apply:

  • Entering into a joint protocol with an individual collaborating physician who is present or readily available through electronic communication (N.J.S.A. 45:11-49);
  • Including the name, address, and telephone number of a collaborating physician on prescriptions or orders (N.J.S.A. 45:11-49);
  • Reviewing patient charts and records with the collaborating physician (N.J.S.A. 45:11-49); and
  • Obtaining the authorization or written approval from a collaborating physician in order to dispense narcotic drugs for maintenance treatment or detoxification treatment or to determine the medical necessity for services for treatment of substance use disorder (N.J.S.A. 45:11-49.3).

For physician assistants these changes include removing the following requirements, to the extent they would otherwise apply:

  • Obtaining physician supervision (N.J.S.A. 45:9-27.15, N.J.S.A.45:9-27.16(b), N.J.S.A. 45:9-27.17, and N.J.S.A. 45:9-27.18) which also suspends the provisions of N.J.S.A. 45:9-27.17 relating to physicians’ supervisory responsibility as they apply to both physicians and physician assistants;
  • Entering into a signed delegation agreement limiting the scope of practice to procedures enumerated in the agreement and customary to the supervising physician’s medical specialty, delegated or explicitly authorized (N.J.S.A. 45:9-27.16);
  • Obtaining authorization to order or prescribe a controlled dangerous substance (N.J.S.A. 45:9-27.19); and
  • Limiting the assistance provided in the operating room (N.J.S.A. 45:9-27.16).

Standard of Care

Other than these licensing changes, and the previously discussed relaxation of HIPAA enforcement for video platforms here, most New Jersey telehealth standards have been maintained with a few key changes.

Prior to COVID-19, a provider was required to establish an in-person provider-patient relationship before telehealth services could be provided. However, during the COVID-19 emergency, this requirement has been lifted and providers must use clinical judgment to determine whether the telehealth service sought can be adequately addressed in a telehealth setting or requires and in-person physical exam. Also, the requirement that providers review a patient’s medical record before an initial telehealth encounter is also temporarily suspended so that the unavailability of records does not present a barrier to an establishment of the provider-patient relationship.

Prior to COVID-19, a non-Medicaid patient receiving telehealth services was required to be treated by a New Jersey licensed provider located in a New Jersey, through “interactive, real-time, two-way communication” and the patient was required to be located in the state of New Jersey (including their home). For Medicaid services the New Jersey patient receiving telehealth services through live video was also required to be located in New Jersey (including their home) and the provider is only allowed to provide telepsychiatry. However, during the COVID-19 emergency, these site-of-service requirements have been lifted and allows patients to be in any location within the state of New Jersey and allows providers to be in any location within the United States.

Out-of-state providers notably can provide telehealth services to patients located in the state of New Jersey for treatment related to COVD-19 as well as treatment unrelated to COVID-19 so long as that provider has a New Jersey license (whether traditional or one of the temporary licenses discussed above). For those out-of-state providers who with to treat New Jersey patients but do not themselves have a New Jersey license, during the COVID-19 emergency that provider may continue to provide care to pre-existing patient relationships where the patient resides in New Jersey. Those out-of-state providers without New Jersey licenses can also provide telehealth care to patients they do not have a pre-existing relationship, but that practice is limited to providers who are licensed or certified in good standing in another state, practices telehealth within their scope, and only provides COVID-19 screening, testing, and treatment.

While the nationwide COVID-19 public health emergency is in effect, several U.S. Drug Enforcement Agency’s (“DEA”) requirements that an in-person medical evaluation be performed prior to prescribing Schedule II-V controlled substances have been relaxed. So long as (1) the prescription is issued for a legitimate medical purpose by a provider acting in the usual course of their professional practice; (2) the telemedicine encounter is conducted using an audio-visual, real-time, two-way interactive communication system; and (3) the provider is acting in accordance with applicable federal and state laws. Further, similar New Jersey requirements are also relaxed per Executive Order 112: any healthcare professional with prescribing authority who is granted an expedited temporary license (see above) and who holds a current and valid registration with the DEA, is not required to obtain a New Jersey controlled dangerous substance registration prior to registering for the New Jersey Prescription Monitoring Program before prescribing Schedule II-V controlled substances.

For the billing of telehealth services, providers should keep in mind that careful coding should be exercised as certain CPT codes are for telephone-only consultations and are wholly separate from those codes for audio-visual telemedicine. Examples of CPT codes that can be billed as a telemedicine office visit include: New patient visit codes (99201 99202 99203 99204 99205) and established patient visit code (99211 99212 99213 99214 99215). In contrast, telephone specific evaluation and management CPT codes are (similar to office visit E&M codes) partially time based (99441 for a 5-10-minute encounter, 99442 for a 11-20-minute encounter, and 99443 for a 21-30-minute encounter). Also note that insurance plans may also ask for the claim to include a modifier (either -GQ, GT, or -95) and a place of service code (2 if the service is provided by telemedicine). For COVID-19 testing specifically, CMS has adopted two CPT codes (U0001 and U0002) and some commercial plans, but not all, will accept CPT code 87635.

Despite all the changes to healthcare and telemedicine to date in response to COVID-19, the following keystones of standard of care remain unchanged:

  • Providers must take reasonable steps to prevent unauthorized disclosure of patient health information.
  • New Jersey requires that a provider establish a provider-patient relationship by gathering a medical history and records for each telehealth patient where available in order to meet the standard of care (though, as discussed above, review of medical records prior to the tele-encounter is not required).
  • Record keeping and consent to care requirements remain the same.
  • Accurate CPT reporting of true telehealth services versus telephone only services or telephone aspects of another comprehensive CPT code.

As always, our attorneys are here to answer any questions you may have. Please feel free to call us at 609-799-5150 or email us at info@buttacilaw.com with your concerns.

Stay safe, stay healthy, and we will get through this together.

Posted in: Compliance, Health IT, Regulation, Reimbursement, Telemedicine