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Harwood Lloyd

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New Jersey Has Joined the Many States With Laws Governing Telemedicine Services

David MeinhardSeptember 18, 2017

New Jersey’s Telemedicine Law became effective July 21, 2017

New Jersey recently joined the majority of states which have laws governing the practice of telemedicine provided to New Jersey residents. The intent of this legislation is to help expand access to healthcare and reduce costs. This is important legislation for health care providers and health care consumers. It establishes general guidelines in this evolving area, providing health care providers some direction, and patients the potential for easier and greater access to health care services. It’s a good start, however the State Boards overseeing the various health care provider types will need to take steps to establish more detailed criteria applicable to telehealth services.

To a great degree, the law, found at N.J.S.A. 45:1-61-66, allows the provision of “telehealth” services by New Jersey licensed health care providers acting within the scope of their license to New Jersey patients. The law enacting the telemedicine laws also includes supplements to various health insurance laws, essentially requiring state and private health insurers to provide coverage for telemedicine services their beneficiaries receive consistent with coverage provided for face to face healthcare services. For local New Jersey licensed health care providers its important to recognize that there are out of state providers with New Jersey licensed practitioners who may see this as a tool to help them compete in the New Jersey marketplace.

Telemedicine/Telehealth

“Telemedicine” means health care delivery using electronic communications and various forms of information technology to bridge the gap between health care providers located at a distant site from a patient. These services are provided using interactive two-way communication technologies. Telemedicine does not include the use, in isolation, of audio only telephone conversations, electronic mail, instant messaging, phone text, or facsimile transmission. “Telehealth” means the use of information and communications technologies to support clinical health care, provider consultation, and health care education of patients.

The new law requires that telehealth services be consistent with the manner in which a practitioner treats and manages patients it sees at in-person encounters, down to establishing the patient-physician relationship and maintaining medical records. The standard of care for telehealth services needs to meet the standards applicable to the in-person provision of health care services.

The law allows for both synchronous telemedicine (such as through a live video chat between the health care provider and the patient, where the communication is in real time) and asynchronous, also referred to as “store and forward”, telemedicine. Asynchronous telemedicine means that a health care provider can be treating a patient or consulting with another health care provider at differing times – such as the exchange of information through emails between the parties.

A health care provider engaging in telemedicine must ensure that a proper provider-patient relationship has been established. If such a relationship has been established through telemedicine the health care provider may prescribe medications to his/her patients (with certain restrictions applicable to Schedule II controlled dangerous substances). If a health care provider practicing telemedicine on a patient determines that the use of telemedicine would not meet the required standard of care for that patient’s condition, the health care provider needs to direct the patient to seek in-person medical care.

State Boards regulating the various elements of health care practice are directed to adopt rules and regulations as may be necessary to implement the provision of telemedicine and telehealth services. Significantly, the law provides that these boards may not adopt any rules or regulations which require an initial in-person visit between the practitioner and the patient.

Each telemedicine organization operating in the State must annually register with the Department of Health, and submit an annual report of its activities in a manner to be determined by the Commissioner of the DOH. The failure to register with the DOH or submit annual reports will subject the telemedicine organization to such disciplinary actions as the Commissioner of Health may prescribe by regulations. Per a discussion I had in early September with a Policy Advisor in the NJ Department of Health, there currently is no specific timeline on when the government agencies responsible for implementing these telemedicine requirements will be required to establish procedures or issue regulations. The timing is subject to appropriate direction from the Governor’s Office of Policy.

Health Plan Coverage of Telehealth Services

In addition to the new statute related to telemedicine, existing laws regarding health insurance (both state programs and private payers) have been supplemented to cover these services. Reimbursement for the telemedicine services may not exceed reimbursement for in-person services. In addition, the law provides that an insurance carrier may limit coverage to services that are delivered by providers in the health plan’s network but may not “charge any deductible, copayment, or coinsurance for a health care service, delivered through telemedicine or telehealth in an amount that exceeds the deductible, copayment or coinsurance that is applicable to an in-person consultation.”

Notwithstanding the language quoted above, based on experience in other states where telemedicine has been on the books for a while, how the differing payers will reimburse for telemedicine services is not clear. Available information indicates that some major commercial insurers cover telemedicine services to some degree. It would appear that in New Jersey reimbursement needs to be consistent with reimbursement for in-person services, though its unclear, at least to this writer, whether the New Jersey law will be interpreted to require that the reimbursement for the same services via telemedicine be at the same level as the in-person consultations. The reference to copayment and coinsurance parity appears to mean that the health plan must reimburse identically for the telehealth services. See the following for context on these piece of the pie http://blog.evisit.com/telemedicine-reimbursement-faqs-2017. In any event, consumers should take steps to find out whether the use of telehealth services will be covered by their health plan prior to using these services.

Prior to the enactment of these new laws certain New Jersey health plans had existing policies related to reimbursement for telehealth services provided by licensed providers to their members. By way of example, Horizon Blue Cross/Blue Shield has a policy which has a purpose to “Provide guidelines for services identified as through telemedicine platforms, and identify when these services may be eligible for reimbursement independent of any existing vendor agreements or special arrangements.” The policy can be found at https://www.horizonblue.com/providers/policies-procedures/policies/reimbursement-policies-guidelines/services-on-telemedicine-platforms.

Medicare & Telemedicine

Per an April 2017 Medscape article, there is a narrow band of circumstances where Medicare covers telehealth services. Per Medscape “Currently, Medicare covers telehealth services only in underserved rural areas, and it requires that patients go to a specified healthcare setting like a doctor's office in order to receive remote services from other providers. Medicare also reimburses just 81 telehealth services.”

Where Medicare covers telemedicine there are specific coding rules that need to be met. In 2017, the American Medical Association (AMA) added modifier 95, a new modifier for designating synchronous telemedicine services rendered via real-time interactive audio and video telecommunications systems. Providers can only use modifier 95 in conjunction with a select subset of CPT codes, as noted in Appendix P of the CPT manual. These codes are also denoted with a star symbol in the body of the CPT code set. For a complete list of the 79 codes included in Appendix P you can go to this website to download more information http://try.evisit.com/how-to-get-reimbursed-for-telehealth/.

There will much more to come in this area, which will ultimately benefit consumers and health care providers who seek to embrace the use of telehealth services in their practice. More information about telemedicine can be found at the Center for Connected Health Policy - http://www.telehealthpolicy.us/

Reduce Malpractice and Fraudulent Claims Risk By Following Best Practices in Creating Medical Records

David MeinhardAugust 28, 2017

The importance of proper documentation of medical services provided can not be understated. Failing to follow best practices can expose a health care provider to professional liability claims as well as claims of fraudulent billing and potential liability under Federal laws regarding false claims. To avoid these exposures health care providers, and their staff, need to be diligent in properly managing how they create and manage patient medical records.

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Publications

New Jersey Has Joined the Many States With Laws Governing Telemedicine Services.

July 21, 2017

New Jersey recently joined the majority of states which have laws governing the practice of telemedicine provided to New Jersey residents.  The intent of this legislation is to help expand access to healthcare and reduce costs. This is important legislation for health care providers and health care consumers. It establishes general guidelines in this evolving area, providing health care providers some direction, and patients the potential for easier and greater access to health care services. It’s a good start, however the State Boards overseeing the various health care provider types will need to take steps to establish more detailed criteria applicable to telehealth services.

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