SENATE, No. 291






      The Senate Health, Human Services and Senior Citizens Committee reports favorably a Senate Committee Substitute for Senate Bill No. 291.

      The substitute bill would authorize health care providers in the State – including licensed physicians, practical nurses, registered professional nurses, advanced practice nurses, psychologists, psychiatrists, psychoanalysts, clinical social workers, physician assistants, professional counselors, respiratory therapists, speech pathologists, audiologists, optometrists, pharmacists, and any other health care professional acting within the scope of a valid license, certification, or registration issued pursuant to Title 45 of the Revised Statutes – to engage in telehealth and telemedicine.  This authorization would extend to mental health screeners, who, as specified by the bill, would be allowed to engage in mental health screening procedures through telemedicine without necessitating a waiver from existing rules. 

      “Telemedicine” is defined by the bill to mean the delivery of a health care service using electronic communications, information technology, or other electronic or technological means to bridge the gap between a health care provider who is located at a distant site and a patient who is located at an originating site, either with or without the assistance of an intervening health care provider, and in accordance with the bill’s provisions.  “Telemedicine” does not include the use, in isolation, of audio-only telephone conversation, electronic mail, instant messaging, phone text, or facsimile transmission. 

      “Telehealth” is defined by the bill to mean the use of information and communications technologies, including telephones, remote patient monitoring devices, or other electronic means, to support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.

      The substitute bill would provide, in particular, that a health care provider may remotely provide health care services to a patient in the State, and a proper patient-provider relationship may be established, through the use of telemedicine.  A health care provider would also be authorized to engage in telehealth activities as may be necessary to support and facilitate the provision of health care services to patients in the State.

      Any health care provider engaging in telemedicine or telehealth would need to:  (1) be licensed, certified, or registered to provide services to patients in New Jersey, in accordance with applicable State law; (2) comply with regulations adopted by the appropriate State licensing board or other professional regulatory entity; and (3) act in compliance with existing requirements regarding the maintenance of liability insurance.

      A health care provider engaging in telemedicine would be required to use asynchronous store-and-forward technology to allow for the electronic transmission of images, diagnostics, data, and medical information.  At the provider’s discretion, video conferencing tools that allow for interactive, real-time communication, may also be utilized.  The bill requires the delivery of health care services through telemedicine, wherever possible, to be done using a combination of audio and video technologies; however, it authorizes a health care provider to use interactive audio with asynchronous store-and-forward technology, without video capabilities, if, after accessing and reviewing the patient’s medical records, the provider determines that he or she is able to meet the same standard of care as if the health care services were being provided in person.

      Treatment and consultation recommendations, which are made through the use of telemedicine, are to be subject to the same standard of care or practice standards as are applicable to in-person settings.  Unless a proper patient-provider relationship has been established in accordance with the bill’s provisions, however, a provider would be prohibited from issuing a prescription to a patient based solely on the responses provided in an online questionnaire.

      A health care provider would be authorized to prescribe controlled dangerous substances through the use of telemedicine only after conducting an initial in-person examination of the patient, as provided by N.J.A.C.13:35-7.1A.  In addition, the bill requires the provider to engage in a subsequent in-person visit with the patient at least once every three months for the duration of time that the patient is being prescribed the controlled dangerous substance.  However, the in-person examination or review of a patient would not be required when a health care provider is prescribing buprenorphine to a patient, or when a board certified psychiatrist or psychiatric nurse practitioner is prescribing a stimulant for use by a minor patient under the age of 18.

      A health care provider who engages in telemedicine or telehealth activities would be required to maintain a complete record of the patient’s care, and comply with all applicable State and federal statutes and regulations regarding recordkeeping, confidentiality, and disclosure of the patient’s medical record.

      The substitute would require each State licensing board or other entity that is responsible for the licensure or regulation of health care providers in the State, to adopt rules and regulations that are applicable to the health care providers under each board’s respective jurisdiction, as may be necessary to facilitate the providers’ engagement in telemedicine and telehealth activities.  The State’s licensing boards would be prohibited from establishing a more restrictive standard for the professional practice of telemedicine or telehealth than the standard that is applicable to the practitioner’s ordinary scope of practice, as authorized by the provider’s practice act or other specifically applicable statute. 

      Any health care provider who engages in telemedicine would be required to ensure that a proper provider-patient relationship is established.  The bill specifies the actions that must be taken to establish such relationship, including:  (1) properly identifying the patient; (2) disclosing and validating the provider’s identity and credentials; (3) obtaining suitable patient consents, which may be oral, written, or digital in nature, so long as the chosen method of consent is deemed appropriate under the standard of care; (4) establishing a patient history, and a diagnosis and treatment plan, either through the in-person examination of the patient, as provided by N.J.A.C.13:35-7.1A, or through telemedicine; (5) discussing with the patient, the diagnosis and evidence therefor, as well as the risks and benefits of various treatment options; (6) ensuring the availability of coverage for appropriate follow-up care; and (7) providing the patient with access to a summary of the encounter or the patient’s medical record, and, upon the patient’s request and consent, timely sharing the summary of the encounter with the patient’s primary health care provider or other health care provider of record.

      Despite this general requirement, the bill specifies that telemedicine may be practiced without a proper patient-provider relationship, as defined above, in the following circumstances:

      –    during informal consultations performed by a health care provider outside the context of a contractual relationship, or on an irregular or infrequent basis, without the expectation or exchange of direct or indirect compensation;

      –    during episodic consultations by a medical specialist located in another jurisdiction who provides consultation services, upon request, to a properly licensed or certified health care provider in this State;

      –    the furnishing of medical assistance by a health care provider in the case of an emergency or disaster, provided that there is no charge for the medical assistance; or

      –    the provision of health care services on an on-call or cross-coverage basis by a substitute health care provider acting on behalf of an absent health care provider in the same specialty, provided that the absent health care provider has designated the substitute provider as an on-call provider or cross-coverage service provider.

      The substitute bill would also specify that Medicaid, NJ FamilyCare, and various insurance coverage providers (including carriers of managed care plans, the State Health Benefits Commission, and the School Employees’ Health Benefits Commission) must each provide coverage and payment for services provided through telemedicine, at least at the same rate that is applicable when the services are delivered through in-person contact or consultation.  Each such carrier or insurance provider would be authorized to charge a deductible, copayment, or coinsurance for a health care service delivered through telemedicine, so long as the amount charged does not exceed the charge for an in-person consultation.  Where applicable, each carrier or insurance provider would be limited in their ability to impose annual or lifetime dollar maximum amounts on the coverage of services provided through telemedicine.  Nothing in the substitute, however, would prohibit a carrier or other insurance provider from providing coverage only for services deemed to be medically necessary, and nothing would allow a carrier or other insurance provider to coerce a covered person to use telemedicine in lieu of receiving an in-person service.