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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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Updating New Jersey’s Bulk Sale Notification Law

October 27, 2011

Commercial real estate owners, investors and their attorneys have long become accustomed to the overbearing and sometimes inefficient compliance requirements of New Jersey's bulk sale notification law at N.J.S.A. 54:50-38. Originally adopted in 1966 and expanded in 2007, the law requires real estate purchasers to notify the Division of Taxation ("Division") of every bulk sale transaction at least ten (10) days prior to the proposed closing of the transaction. A purchaser's failure to abide by bulk sale notice requirement subjects the purchaser to liability for any state tax obligations due by seller at the time of closing. The underlying goal of the law was simple - to capture any tax liabilities owed to the state by the seller by effectively creating a lien against the seller's assets.

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Decisions

General Security National Insurance Company v. New Jersey Intergovernmental Insurance Fund, 2011 WL 3714982 (App. Div. August 25, 2011).

Peter E. MuellerAugust 25, 2011

General Security National Insurance Company v. New Jersey Intergovernmental Insurance Fund, Docket No. A-5591-08 (N.J. Super. App. Div. Aug. 25, 2011). Excess carrier sued primary carrier and other excess carriers to recoup costs of defending and settling an underlying claim of hostile work environment occurring over a five-year period. The Appellate Division upheld the trial court's rulings that notwithstanding the fact that offensive conduct occurred throughout the period, the named insured's knowledge of the issue in the second year cut off coverage for the later-year insurers, including Harwood Lloyd's client. The court also found that the underlying settlement was reaonable and granted attorney's fees against the first excess insurer. The Appellate Division found that the trial judge correctly rejected the continuous-trigger doctrine, finding that the continuous trigger of coverage does not apply to employment cases. This resulted in the municipal defendant having to pay only one $100,000 self-insured retention, rather than multiple retentions, which would largely have vitiated coverage for the municipal defendant.

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Agha v. Feiner, 198 N.J. 50 (2009)

August 10, 2011

Agha v. Feiner, 198 N.J. 50 (2009) addressed the substantive admissibility of an MRI report, prepared by a non-testifying radiologist, and relied upon by plaintiff's testifying physicians at trial. One of the plaintiff's testifying physicians, a chiropractor, acknowledged that he was not qualified to interpret an MRI, and the other, an anesthesiologist, did not review the plaintiff's MRI films. Over defendants' objections, both witnesses were permitted, based on the MRI report, to testify that the plaintiff suffered a disc herniation, which was the only objective evidence of a permanent injury. The defense's request for a limiting instruction was denied. The defense moved to dismiss the plaintiff's case based on the plaintiff's failure to satisfy the permanency threshold of the Automobile Insurance Cost Reduction Act (AICRA), which the trial court denied. On appeal, the Appellate Division reversed, reasoning that plaintiff had "bootstrapped" the contested MRI report findings into evidence through the testimony of the treating physicians in violation of established law. The Supreme Court agreed, holding that only an expert qualified to interpret an MRI, and having read the MRI, could testify to the MRI results at trial.

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Shah v GEICO Insurance Company, 2011 WL 3444269 (App. Div. August 9, 2011)

Jeanne O. MarinoPeter E. MuellerAugust 9, 2011

The Appellate Division, per curiam, affirmed grant of summary judgment to GEICO, upholding  underinsured motorist coverage exclusion for relatives residing in  the same household.    The Policy  did not define "household," so the court applied the dictionary definition, and rejected the insured's claim of ambiguity.   The court also rejected claims that the  failure to the Policy's declarations pages to make any reference to the  exclusions created an ambiguity.  Lastly, the court rejected claims that the insurance company has an obligation, after providing a copy of the Policy, to inform  insureds of  limitations on coverage.  Rather, the court reiterated, the "Plaintiffs should have read their policy." 

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National Union Fire Insurance Company of Pittsburgh, PA v. Zurich Insurance Company, 2011 WL 1103475 (App. Div. Mar. 28, 2011).

Peter E. MuellerMarch 28, 2011

Harwood Lloyd represented National Union, which had settled an underlying construction bodily injury claim and sought to recover defense and indemnity costs from Zurich, which had issued an Owners & Contractors Protective Liability policy to National Union's insured. Zurich denied coverage, and the trial court granted Zurich summary judgment. The Appellate Division reversed the trial court and entered judgment against Zurich for its $5 million policy limit. The case was remanded to the trial court for a determination of the attorney's fees owed by Zurich to National Union under R. 4:42-9(a)(6). Zurich subsequently appealed to the New Jersey Supreme Court, which denied certification.

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Tinen v Lederer Docket 04-2-8010 (App. Div. Decided May 26, 2010)

Andrew G. ToulasMay 26, 2010

Per Curiam. Plaintiff's appeal of jury verdict of no cause of action in wrongful death action. After oral argument, the NJ Appellate Division affirmed the trial court's admission into evidence of a DVD simulation and police photographs of the accident scene where decedent pedestrian was struck by defendant's vehicle while walking his dog.

Estate of Lois Mancini and George Mancini v. American International Group, Inc., 2010 WL 1189637 (App. Div. March 30, 2010)

Peter E. MuellerMarch 30, 2010

Estate of Lois Mancini and George Mancini v. American International Group, Inc., Docket No. A-3180-08T1 (App. Div. March 30, 2010) Asserting that defendants' delay in remediating a leaking home heating oil underground storage tank, caused exposure to toxic degradation consitutents of the fuel oil, Plaintiffs, the Estate of Lois Mancini, and George J. Mancini, sued, alleging that Lois Mancini had contracted myelofibrosis because of her exposure. After years of litigation, the trial court dismissed plaintiffs' complaint because plaintiffs lacked an expert witness linking the exposure to the alleged injury In fact, plaintiff's expert refused to go forward with the case after receiving the defense expert's report. On appeal, the Appellate Division affirmed the grant of summary judgment and the trial court's refusal to again extend discovery.

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Tobon v. Cavani, 2009 WL 10777430 (App. Div. 2009)

Paul E. KielDecember 31, 2009

The Appellate Division affirmed the trial court's denial of plaintiffs' motion to vacate an order dismissing their personal injury complaints with prejudice for failure to provide complete discovery. The appeals court ruled that the trial court did not abuse its discretion in refusing to restore the action where discovery from plaintiffs was still outstanding nearly two years after the action was first dismissed without prejudice. The Appellate Division also held that the misplacement of a file by plaintiffs’ prior law firm did not constitute the "exceptional circumstances" necessary to vacate the dismissal, especially where counsel failed to move promptly or expeditiously to correct the delinquency after the errors of prior counsel was discovered.

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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Property Tax Implications for Real Estate Damaged by Hurricane Sandy.

November 8, 2012

The aftermath of Hurricane Sandy has revealed the considerable damage sustained by both commercial and residential properties throughout the state. Whether damage resulted from the storm’s high winds or associated flooding, property owners are now holding assets which have materially depreciated due to the destruction and alteration of their properties.

To view the bulletin click here.

Federal Estate and Gift Tax changes.

July 31, 2012

Federal Estate and Gift Tax changes on the horizon will have an impact on your Estate plan. For more information click here.

The Woman Advocate, 2nd Edition, February 2010 - Evelyn R. Storch, Co-Editor; Author: Dealing With Difficult Adversaries

Evelyn R. StorchFebruary 1, 2010

THE WOMAN ADVOCATE is by women advocates for woman advocates. It contains first-hand accounts by successful women lawyers of their experiences at all stages of career development. In the four parts of the book- Where We Are; How We Got There; What Our Environment Is Like; and Where We're Going-the contributors provide reflections, advice, guidance, and, of course, war stories in lively, entertaining and insightful prose. 

To purchase this book please follow one of the links below.

American Bar

or

Amazon