As noted in our June 9, 2021 Health Care Law Update, Governor Murphy signed A5820 into law, ending the COVID-19 public health emergency. With the exception of fourteen executive orders specifically identified in A5820, all executive orders issued in response to the public health emergency are set to expire 30 days following the effective date of the law, i.e., July 4, 2021. With certain exceptions, under A5820, any administrative orders, directives, or waivers issued by a State agency that relied on the existence of the public health emergency are extended until January 11, 2022.
What does this mean for telemedicine in New Jersey? Telemedicine was expanded in New Jersey by both agency action and statute. In addition, the agency action and statute relied on not only the public health emergency but also Governor Murphy's declaration of a state of emergency, which A5820 did not revoke and continues to this day.
For example, Bulletin No. 20-07 issued by the Department of Banking and Insurance ("DOBI") requires health insurance carriers in New Jersey to "cover, without cost-sharing (i.e., copayments, deductibles, or coinsurance), any health care services or supplies delivered or obtained via telemedicine or telehealth as required by P.L 2020, c.7." Bulletin No. 20-07 also requires, among other things, that health insurance carriers pay telemedicine visits at the same rate as in-person visits for in-network providers. Bulletin No. 20-07 expressly states that it shall remain in effect for "the duration of the state of emergency and public health emergency . . ." (emphasis added).
Similarly, DCA Administrative Order No. 2020-15 and DCA Waiver No. W-2020-14, which allows the use of telemedicine in connection with prescribing controlled substances in certain circumstances, state that they shall remain in effect "until whichever of the following occurs first: (1) the end of the state of emergency or public health emergency . . . whichever is later . . ." (emphasis added).
Besides the above agency actions, the New Jersey Legislature passed A3843, which provides nearly the same expansion as Bulletin No. 20-07. In addition, A3860 was passed, which allows out-of-state physicians to engage in telemedicine visits with patients in New Jersey in connection with COVID-19 even though the physician is not licensed in New Jersey. In July 2020, S2467 became law, and it extended both A3860 and A3843 for "90 days following the end of both the public health emergency and the state of emergency . . ." (emphasis added).
Considering that the state of emergency has not expired, it appears that the telemedicine expansion offered under A3860 and A3843 will continue beyond January 11, 2022 unless the Governor moves to end the state of emergency, or the Legislature and DOBI take action to clarify the above statutes and agency actions.
Keep in mind that the federal waivers instituted by Centers for Medicare and Medicaid Services will continue with regard to Medicare beneficiaries since the Federal Government has not withdrawn the national Public Health Emergency.
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