May 15, 2021

Volume XI, Number 135

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A Renewed Focus on Telehealth in New Jersey

New Jersey governing boards for dentistry, counseling, respiratory care and occupational therapy have introduced regulations to address licensure requirements for telehealth encounters, consistent with previous regulations adopted by governing boards of other health professionals in New Jersey. The New Jersey legislature is also considering a bill to expand reimbursement for covered services provided via telehealth and allow for new flexibilities, including on type of encounter, location and distance requirements and reimbursement parity. Comments for the four regulations from the governing bodies are due by May 14, 2021.

IN DEPTH


In 2017, New Jersey enacted sweeping new telehealth legislation when it passed P.L. 2017, c. 117, codified at N.J.S.A. § 45:1-61 et seq. The law established telemedicine and telehealth practice standards for several types of healthcare professionals and imposed insurance coverage requirements.

Since then, governing boards have proposed and adopted telehealth regulations to effectuate the law. Specifically, the boards, examiners or advisory councils of social workers, veterinarians, psychologists, art therapists, physicians, nurses, audiologists, orthotic and prosthetic professionals, physical therapists and psychoanalysts have adopted telehealth-specific regulations. On March 15, 2021, the State Board of DentistryState Board of Marriage and Family Therapy Examiners, Alcohol and Drug Counselor CommitteeState Board of Respiratory Care; and Occupational Therapy Advisory Council followed suit, proposing regulations establishing telemedicine and telehealth standards for their respective professionals. Comments for each of these four regulations are due by May 14, 2021.

In their proposed form, the regulations are strikingly similar to each other and to nearly all of the other telehealth regulations adopted by New Jersey administrative bodies. In accordance with P.L. 2017, c. 117, the proposed regulations would prohibit out-of-state practitioners from providing care via telehealth to patients physically located in New Jersey without a New Jersey license. However, an out-of-state provider could use communications technology to consult with a New Jersey licensee, so long as the out-of-state provider was not directing patient care.

Also in line with P.L. 2017, c. 117, the regulations would require New Jersey licensees who provide services through telehealth to provide those services in accordance with the standard of care for such services when provided in-person. Providers typically must use interactive, real-time, two-way communication technologies with a video component. Audio-only telehealth is only permissible if the provider, after reviewing a patient’s records, determines she can meet the standard of care without video. In this situation, the licensee must use interactive, real-time, two-way audio in combination with technology that supports the transmission of images, diagnostics, data and medical information.

Pending Legislation

In addition to these regulatory proposals, the New Jersey legislature is currently considering an amendment (S 2559) to the 2017 law that would expand reimbursement for covered services provided via telehealth and allow for new flexibilities.

On March 22, 2021, the New Jersey Senate Budget and Appropriations Committee passed this legislation out of committee. In its current form, the bill, like the proposed regulations, requires telehealth providers to meet the same standard of care as if they were providing in-person services. Similarly, it allows for audio-only telehealth so long as a provider meets that standard of care.

The bill would also expand reimbursement for telehealth services by requiring insurance providers and Medicaid to ensure payment parity between services provided via telehealth and services provided in-person. Current law provides that telehealth rates are negotiable up to the in-person rate, meaning the reimbursement rates for telehealth services are often lower than the rates a provider would have received had he performed the services in-person.

Finally, the bill prohibits payors from imposing any restrictions on the location of the distant site the provider uses to provide telehealth services or on the location of the originating site where the patient is located when receiving telehealth services.

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© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 109
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Amanda Enyeart Healthcare and Life Sciences Attorney Mcdermott WIll Emery Law Firm
Partner

Amanda Enyeart is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Amanda focuses her practice on general regulatory health law matters. 

Previously, Amanda was an associate at a national law firm in its Chicago office where she provided guidance on regulatory issues, such as practitioner licensure; telehealth; Medicare and Medicaid reimbursement; and compliance with Stark Law and the Anti-Kickback Statute and state fraud and abuse laws.

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Marshall E. Jackson, Jr. is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  Marshall focuses his practice on transactional and corporate matters affecting health care organizations,  including business organization, corporate governance, mergers and acquisitions, strategic affiliations and joint ventures.  Marshall also provides advice and counsel on a full range of federal and state fraud and abuse laws to hospital systems, medical practice groups and pharmacies.

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Lisa Schmitz Mazur, Health Law Attorney, McDermott Will Law Firm
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Lisa Schmitz Mazur is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Lisa maintains a general health industry practice, focusing on the representation of hospitals and health systems and other health industry providers.

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 Dale C. Van Denmark MWE Partner DC, Regulatory, Government & Lobbying Strategies  Health Care  Life Sciences
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Dale C. Van Demark advises clients in the health industry on strategic transactions and the evolution of health care delivery models. He has extensive experience in health system affiliations and joint venture transactions. Dale also provides counseling on the development of technology in health care delivery, with a particular emphasis on telemedicine. Dale has been at the forefront of advising clients with respect to the globalization of the US health care industry. He advises US and non-US enterprises with respect to the formation of cross-border affiliations and international patient...

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Brittany Bell Health Care Lawyer McDermott
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Brittany Bell represents companies in the healthcare industry across the complete transactions lifecycle. She has experience conducting buyer-side due diligence, managing transaction closings and coordinating post-closing obligations. She also represents clients across all aspects of portfolio company investing, helping them navigate the complexities of strategic mergers, restructurings, refinancing and exits.

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