A Light at the End of the Telemedicine Tunnel Appears (on the New Jersey Side)

by Cecylia K. Hahn

Upon recently reviewing the healthcare coverage benefits under a particular health plan, I was almost giddy to note that telemedicine services (both medical and mental health) were covered and reimbursable at the same rate as traditional in-person services. While some carriers have come to appreciate this form of health care service delivery, standards for licensure, practice, reimbursement, and prescription of medication have to date been unregulated and thus unclear in New Jersey.

Nevertheless, New Jersey lawmakers are working hard toward enacting legislation that would provide clarity by regulating the practice of telemedicine. The Senate Health and Human Services Committee and the Senate Appropriations Committee unanimously recommended the passage of Bill No. S291, while testimony was recently taken by the Assembly Health and Senior Services Committee on an identical Bill No. A1464.

What is Telemedicine?

The bill’s definition of “telemedicine” is quite technical and I would refer you to the bill for that technical definition. In sum, telemedicine is the delivery of a health care service using electronic means or technology to remotely bring together a health care practitioner (e.g., a physician, nurse practitioner, psychologist, and psychiatrist) with a patient typically via two-way videoconferencing or store-and-forward technology. (Store-and-forward technology is the transmission of medical data from a patient’s location to a distant site practitioner for later assessment.) This form of communication is meant to replicate the in-person encounter experience; thus, real-time visual and auditory communication is a must. Telemedicine is not a simple phone call, email, instant message, text, or fax.

Standard of Care

Another important issue, particularly if a health care practitioner is located out-of-state, is which state’s standard of care would apply? One view has been to look to the standard of care where the patient is located. The proposed bill confirms, for New Jersey, a health care practitioner is subject to the same standard of care as he/she would be subject to if the patient encounter was physically located within New Jersey. This would apply to recordkeeping rules as well as maintenance of patient confidentiality.

Added Responsibility of Hospitals

Where a health care practitioner wishes to engage in telemedicine with patients in a hospital, the hospital’s governing body must first verify and approve the credentials of, and grant telemedicine practice privileges to, the practitioner based solely upon the recommendations of the medical staff. The medical staff recommendation is based on information provided by the originating site employer (i.e., employer of health care practitioner at location where service rendered).

Licensing

License portability is an added challenge. Most states that permit telemedicine require that a health care practitioner be licensed in the state where the patient is located. This makes sense given the state’s responsibility to protect its residents. Pursuant to the telemedicine bill, the process to obtain a New Jersey license by an out-of-state practitioner wishing to practice here will be easier or harder depending on the laws of the practitioner’s home state. If the following criteria are met, the appropriate licensing board will be required to grant a reciprocal license to an out-of-state health care practitioner: (1) the other state has substantially equivalent requirements for licensure, registration, or certification; (2) the applicant has practiced in the profession within the five-year period preceding application; (3) the respective New Jersey State board receives documentation showing that the applicant’s out-of-state license is in good standing, and that the applicant has no conviction for a disqualifying offense; and (4) an agent in New Jersey is designated for service of process if the non-resident application does not have an office here. Further, the bill proposes clarifying State Board regulations that provide only for discretionary reciprocal license: the discretion is limited to permit a reciprocal license where not all of the criteria above are met; if they are all satisfied, a license must be granted.

Face-to-face Encounter for Online Prescribing

Federal law makes if generally illegal to prescribe a controlled dangerous substance based solely on an online questionnaire completed by a patient. The question with online prescription of medication is always whether a health care practitioner (who is authorized to prescribe medication) must have an in-person encounter with a patient before prescribing medication to that patient via telemedicine. The bill permits a physician to prescribe, dispense or administer medication to a New Jersey patient if (1) the physician first performs a face-to-face examination of the patient (which examination may occur in-person or via telemedicine and must comply with the standard of care) and (2) the physician adheres to particular laws that apply to that medication. 

Reimbursement

Last, but certainly not least, there is the issue of reimbursement. Even though state regulators currently may permit various providers to engage in telemedicine, the issue of reimbursement remains. The bill would generally prohibit New Jersey Medicaid and New Jersey FamilyCare programs and private health benefit plans from requiring in-person encounters between a health care practitioner and patient, or establishing location restrictions, as a condition of reimbursement under the pertinent program. Further, parity is required for benefits covered and reimbursement rates whether the encounter is in-person or via telemedicine. A drawback to the reimbursement parity, cited by insurance plans, is that it will prevent the use of telemedicine as a cost-savings tool. Of course, the use of telemedicine in the particular situation would have to make sense (and not be contraindicated).

To date, there has been no indication on when the Assembly Health and Senior Services Committee will be voting on Bill No. A1464. If the bill were to pass, it would go before the Governor for review and consideration.