53 N.J.R. 417(a)

VOLUME 53, ISSUE 6, MARCH 15, 2021
RULE PROPOSALS

Reporter
53 N.J.R. 417(a)
NJ - New Jersey Register  >  2021  >  MARCH  >  MARCH 15, 2021  >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement 

INTERESTED PERSONS 
Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal. 
The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of  N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register. 
At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at      N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code. 
Agency


LAW AND PUBLIC SAFETY > DIVISION OF CONSUMER AFFAIRS > OCCUPATIONAL THERAPY ADVISORY COUNCIL


Administrative Code Citation


Proposed New Rules: N.J.A.C. 13:44K-7


Text

  Telemedicine and Telehealth
Authorized By: Paul R. Rodriguez, Acting Director, Division of Consumer Affairs.
Authority: N.J.S.A. 45:1-61 et seq., and 45:9-37.75.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2021-026.
Submit comments by May 14, 2021, to:

ToniAnn Petrella-Diaz, Acting Executive Director
Occupational Therapy Advisory Council
124 Halsey Street
PO Box 45037
Newark, New Jersey 07101

or electronically at:   http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx
The agency proposal follows:
Summary
P.L. 2017, c. 117, which was effective July 21, 2017, authorizes healthcare providers to engage in telemedicine and telehealth. The Acting Director of the Division of Consumer Affairs (Director), in consultation with the Occupational Therapy Advisory Council (Council), proposes new Subchapter 7 to effectuate the provisions of P.L. 2017, c. 117.  
N.J.A.C. 13:44K-7.1 sets forth that Subchapter 7 implements P.L. 2017, c. 117 and establishes that the subchapter applies to persons who are licensed by the Council. The section requires an occupational therapist, occupational therapy assistant, temporary occupational therapist, or temporary licensed occupational therapy assistant to hold a license issued by the Council if they are physically located in New Jersey and are providing health care services by means of telemedicine or telehealth or if they are physically located outside of New Jersey and are providing health care services by means of telemedicine or telehealth to clients located in New Jersey. The section also clarifies that a healthcare provider in another state who uses communications technology to consult with a New Jersey licensee and who is not directing client care will be deemed as not providing health care services in New Jersey and will not be required to obtain a license in New Jersey.  
N.J.A.C. 13:44K-7.2 provides definitions for the terms used in Subchapter 7. The following terms are defined: "asynchronous store-and-forward," "council," "cross-coverage," "distant site," "licensee," "on-call," "originating site," "proper licensee-client relationship," "telehealth," and "telemedicine."  
N.J.A.C. 13:44K-7.3 requires a licensee to determine whether he or she can provide services through telemedicine or telehealth consistent with the standard of care for such services when provided in-person. If such provision of services would not meet that standard, a licensee cannot provide services through telemedicine or telehealth and he or she would be required to advise the client to receive services in-person. A licensee who provides services through telemedicine or telehealth will be held to the same standard of care and practice standards as are applicable when services are provided in-person. In addition, paragraph (b)1 provides that an occupational therapy assistant or any licensee working under supervision is independently responsible for determining whether occupational therapy services can be provided through telemedicine or telehealth in a manner that is consistent with in-person standards of care.  
N.J.A.C. 13:44K-7.4 establishes how a licensee will create a licensee-client relationship prior to providing services through telemedicine or telehealth. A licensee must identify the client and disclose his or her identity. Before a licensee can provide services through telemedicine or telehealth, he or she is required to review a client's medical history and medical records, and any other relevant client records including, but not limited to, educational, vocational, or social records. The section requires licensees to determine if service can be provided through telemedicine or telehealth with the same standard of care as if the services were provided in-person. This determination must be made prior to each unique client encounter. Before providing services through telemedicine or telehealth, a licensee must provide a client with the opportunity to sign a consent form authorizing the release of medical records to the client's primary care provider. A licensee will not have to establish a licensee-client relationship if: services are provided as informal consultations, or on an infrequent basis, and there is no compensation for the services; services are part of episodic consultations by specialists in another jurisdiction; services are provided during an emergency or disaster without compensation; or a licensee is providing on-call or cross-coverage services.  
N.J.A.C. 13:44K-7.5 permits a licensee to provide health care services through telemedicine and to support and facilitate the provision of health care services to clients through telehealth if he or she has established a licensee-client relationship with the client or qualifies for an exemption to the licensee-client relationship requirement. Prior to providing services, the licensee must determine the site at which the client is located and record this in the client's record. When a licensee provides services through telemedicine, he or she must use interactive, real-time, two-way communication technologies, which include a video component. A licensee will not have to use technology that includes a video component if he or she determines, after reviewing a client's records, that he or she can meet the standard of care for such services provided in-person without video. In such a situation, the licensee must use interactive, real-time, two-way audio in combination with technology that permits the transmission of images, diagnostics, data, and medical information.  
A licensee is required to review a client's medical history and records, and any other relevant client records including, but not limited to, educational, vocational, or social records prior to an initial encounter with the client and, for subsequent interactions, review the history and records either prior to, or during, interactions. A licensee who provides services through telemedicine or telehealth is required to provide contact information to a client by which the client can contact the licensee, or an alternative licensee, for at least 72 hours after the provision of services. A licensee must provide clients with their records upon request and provide the client's information to a client's primary care provider or other healthcare provider, upon written request. A licensee is required to provide a referral for follow-up care when it is necessary.  
N.J.A.C. 13:44K-7.6 requires licensees to maintain records of care provided to clients through telemedicine or telehealth. Such records must comply with the requirements in N.J.A.C. 13:44K-10.1 and all other statutes and rules governing recordkeeping, confidentiality, and disclosure.  
N.J.A.C. 13:44K-7.7 requires licensees to establish written protocols to prevent fraud and abuse. Such protocols must address: authentication of users, clients, and the origin of information; the prevention of unauthorized access to a system or information; system security; [page=418] maintenance of documentation; information storage, maintenance and transmission; and verification of client data.  
N.J.A.C. 13:44K-7.8 requires licensees to establish privacy practices for electronic communications that comply with the standards at 45 CFR 160 and 164, which are incorporated herein by reference. These privacy practices must include measures to protect confidentiality and client-identifiable information and transmissions must be protected by passwords, encryption, or other authentication techniques. If a licensee becomes aware of a breach of confidentiality, he or she must report this pursuant to 45 CFR 164. Licensees must provide clients with copies of privacy practices and obtain written acknowledgement of receipt from clients. The section also requires licensees to provide clients with notice regarding telemedicine and telehealth that includes risks and information on how to receive follow-up care. Licensees must obtain a signed and dated statement from the client recognizing receipt of this notice. If the provision of services through telemedicine or telehealth cannot provide all clinical information necessary to provide care, a licensee will have to inform the client of this and advise the client that he or she should receive an in-person evaluation to meet his or her needs.  
The Director has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.  
Social Impact  
The Director believes the proposed new rules will have a positive social impact in that they will facilitate the use of communication technologies to provide health care services while protecting clients who receive such services through telemedicine or telehealth.  
Economic Impact  
The Director anticipates that the proposed new rules may have an economic impact on licensees who choose to provide health care services through telemedicine or telehealth. The proposed new rules require licensees to use communication technologies that provide for interactive, real-time, two-way communication that includes a video component. Licensees may incur costs in obtaining such communication technologies. The Director does not anticipate that the proposed new rules will have any other economic impact.  
Federal Standards Statement  
Requirements at N.J.A.C. 13:44K-7.8 impose the same standards for privacy of communications as are imposed at 45 CFR 160 and 164, which are incorporated by reference into the proposed new rule. There are no other Federal laws or standards applicable to the proposed new rules.  
Jobs Impact  
The Director does not believe that proposed new rules will result in the creation or loss of jobs in the State.  
Agriculture Industry Impact  
The Director does not believe that proposed new rules will have any impact on the agriculture industry in the State.  
Regulatory Flexibility Analysis  
Currently, the Council licenses approximately 6,750 occupational therapists, 1,300 occupational therapy assistants, and 20 temporary license holders. If these licensees are considered "small businesses" within the meaning of the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., then the following analysis applies.  
The economic impact on small businesses will be the same as that imposed on all businesses as detailed in the Economic Impact statement. The Director does not believe that licensees will need to employ any additional professional services to comply with the requirements of the proposed new rules. The proposed new rules impose no reporting requirements but impose compliance and recordkeeping requirements upon licensees as detailed in the Summary above.  
The proposed new rules will protect the health, safety, and welfare of clients who receive health care services through telemedicine or telehealth; therefore, no differing compliance requirements are provided to licensees based upon the size of a business.  
Housing Affordability Impact Analysis  
The proposed new rules will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the regulation would evoke a change in the average costs associated with housing because the proposed new rules concern the provision of health care services through telemedicine or telehealth.  
Smart Growth Development Impact Analysis  
The proposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the proposed new rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed new rules concern the provision of health care services through telemedicine or telehealth.  
Racial and Ethnic Community Criminal Justice and Public Safety Impact  
The Director has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.  
Full text of the proposed new rules follows:  
SUBCHAPTER 7.   TELEMEDICINE AND TELEHEALTH  
13:44K-7.1    Purpose and scope  
(a) The purpose of this subchapter is to implement the provisions of P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.), which authorizes healthcare providers to engage in telemedicine and telehealth.  
(b) This subchapter shall apply to all persons who are licensed by the Council.  
(c) Pursuant to N.J.S.A. 45:1-62, an occupational therapist, occupational therapy assistant, temporary occupational therapist, or temporary licensed occupational therapy assistant must hold a license issued by the Council, if he or she:  
1. Is located in New Jersey and provides occupational therapy services to any client located in or out of New Jersey by means of telemedicine or telehealth; or  
2. Is located outside of New Jersey and provides occupational therapy services to any client located in New Jersey by means of telemedicine or telehealth.  
(d) Notwithstanding N.J.S.A. 45:1-62 and (c) above, a healthcare provider located in another state who consults with a licensee in New Jersey through the use of information and communications technologies, but does not direct client care, will not be considered as providing health care services to a client in New Jersey consistent with N.J.S.A. 45:37-51, et seq., and will not be required to obtain licensure in New Jersey in order to provide such consultation.  
13:44K-7.2    Definitions  
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.  
"Asynchronous store-and-forward" means the acquisition and transmission of images, diagnostics, data, and medical information either to or from an originating site or to or from the licensee at a distant site, which allows for the client to be evaluated without being physically present.  
"Council" means the Occupational Therapy Advisory Council.  
"Cross-coverage" means a licensee engages in a remote occupational therapy evaluation of a client, without in-person contact, at the request of another licensee who has established a proper licensee-client relationship with the client.  
"Distant site" means a site at which a licensee is located while providing occupational therapy services by means of telemedicine or telehealth.  
"Licensee" means an individual licensed by the Council.  
"On-call" means a licensee is available, where necessary, to physically attend to the urgent and follow-up needs of a client for whom the licensee has temporarily assumed responsibility, as designated by the client's [page=419] primary care licensed occupational therapist or other health care provider of record.  
"Originating site" means a site at which a client is located at the time that occupational therapy services are provided to the client by means of telemedicine or telehealth.  
"Proper licensee-client relationship" means an association between a licensee and client, wherein the occupational therapist or occupational therapy assistant owes a duty to the client to be available to render professional services consistent with his or her training and experience, which is established pursuant to the requirements at N.J.A.C. 13:44K-7.4.  
"Telehealth" means the use of information and communications technologies, including telephones, remote client monitoring devices, or other electronic means, to support clinical health care, provider consultation, client and professional health-related education, public health, health administration, and other services in accordance with the provisions of P.L. 2017, c. 117 (N.J.S.A.45:1-61 et seq.).  
"Telemedicine" means the delivery of a health care service, including supportive mental health services, using electronic communications, information technology, or other electronic or technological means to bridge the gap between a health care licensee who is located at a distant site and a client who is located at an originating site, either with or without the assistance of an intervening licensee, and in accordance with the provisions of P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.). "Telemedicine" does not include the use, in isolation, of audio-only telephone conversation, electronic mail, instant messaging, phone text, or facsimile transmission.  
13:44K-7.3    Standard of care  
(a) Prior to providing services through telemedicine or telehealth, a licensee shall determine whether providing those services through telemedicine or telehealth would be consistent with the standard of care applicable for those services when provided in-person.  
(b) If a licensee determines, either before or during the provision of occupational therapy services, that services cannot be provided through telemedicine or telehealth in a manner that is consistent with in-person standards of care, the licensee shall not provide or supervise services through telemedicine or telehealth.  
1. An occupational therapy assistant or any licensee working under supervision shall be responsible for determining whether occupational therapy services can be provided through telemedicine or telehealth in a manner that is consistent with in-person standards of care.  
(c) A licensee who determines that services cannot be provided through telemedicine or telehealth pursuant to (b) above shall advise the client to obtain services in-person.  
(d) A licensee who provides a treatment, or consultation recommendation, including discussions regarding the risk and benefits of a client's treatment options, through telemedicine or telehealth, shall be held to the same standard of care or practice standards as are applicable to in-person settings.  
13:44K-7.4    Licensee-client relationship  
(a) Prior to providing services through telemedicine or telehealth, a licensee shall establish a licensee-client relationship by:  
1. Identifying the client with, at a minimum, the client's name, date of birth, phone number, and address. A licensee may also use a client's assigned identification number, Social Security number, photo, health insurance policy number, or other identifier associated directly with the client; and  
2. Disclosing and validating the licensed occupational therapist or occupational therapy assistant's identity, license, title, and, if applicable, specialty and board certifications.  
(b) Prior to initiating contact with a client for the purpose of providing services to the client using telemedicine or telehealth, a licensee shall:  
1. Review the client's medical history, any available medical records, and any other relevant client records including, but not limited to, educational, vocational, or social records;  
2. Determine as to each unique client encounter whether he or she will be able to provide the same standard of care using telemedicine or telehealth as would be provided if the services were provided in-person; and  
3. Provide the client the opportunity to sign a consent form that authorizes the licensee to release client records of the encounter to the client's primary care licensee or other health care provider identified by the client.  
(c) Notwithstanding (a) and (b) above, occupational therapy services may be provided through telemedicine or telehealth without a proper licensee-client relationship if the provision of occupational therapy services is:  
1. For informal consultations with another health care provider performed by a licensee outside the context of a contractual relationship, or on an irregular or infrequent basis, without the expectation or exchange of direct or indirect compensation;  
2. During episodic consultations by a health care specialist located in another jurisdiction who provides consultation services, upon request, to a licensee in this State;  
3. Related to health care assistance provided in response to an emergency or disaster, provided that there is no charge for the medical assistance; or  
4. Provided by a substitute licensee acting on behalf, and at the designation, of an absent licensee in the same specialty on an on-call or cross-coverage basis.  
13:44K-7.5    Provision of occupational therapy services through telemedicine or telehealth  
(a) As long as a licensee has satisfied the requirements at N.J.A.C. 13:44K-7.4, a licensee may provide occupational therapy services to a client through the use of telemedicine and may engage in telehealth to support and facilitate the provision of occupational therapy services to clients.  
(b) Prior to providing services through telemedicine or telehealth, a licensee shall determine the client's originating site and record this information in the client's record.  
(c) A licensee providing healthcare services through telemedicine shall use interactive, real-time, two-way communication technologies, which shall include, except as provided at (e) below, a video component which allows a licensee to see a client and the client to see the licensee during the provision of occupational therapy services.  
(d) A licensee providing services through telemedicine or telehealth may use asynchronous store-and-forward technology to allow for the electronic transmission of:  
1. Images;  
2. Diagnostics;  
3. Data; and  
4. Medical information.  
(e) If, after accessing and reviewing the client's records, a licensee determines that he or she is able to meet the standard of care for such services if they were being provided in-person without using the video component described at (c) above, the licensee may use interactive, real-time, two-way audio in combination with asynchronous store-and-forward technology, without a video component.  
(f) Prior to providing services through telemedicine or telehealth, a licensee shall review any medical history, or medical records provided by a client as follows:  
1. For an initial encounter with a client, medical history, medical records, and any other relevant client records including, but not limited to, educational, vocational, or social records; shall be reviewed prior to the provision of occupational therapy services through telemedicine or telehealth; and  
2. For any subsequent interactions with a client, medical history, medical records, and any other relevant client records including, but not limited to, educational, vocational, or social records, shall be reviewed either prior to the provision of occupational therapy services through telemedicine or telehealth or contemporaneously with the encounter with the client.  
(g) During and after the provision of occupational therapy services through telemedicine or telehealth, a licensee shall provide his or her name, professional credentials, and contact information to the client. Such contact information shall enable the client to contact the licensee for at least 72 hours following the provision of services, or for a longer period if warranted by the client's circumstances and accepted standards of care.  
[page=420] (h) After the provision of occupational therapy services through telemedicine or telehealth, a licensee shall provide the client, upon request, with his or her records reflecting the services provided.  
(i) A licensee shall provide, upon a client's written request, the client's information to the client's primary care provider or to other healthcare providers.  
(j) A licensee engaging in telemedicine or telehealth shall refer a client for follow-up care when necessary.  
13:44K-7.6    Records  
A licensee who provides services through telemedicine or telehealth shall maintain a record of the care provided to a client. Such records shall comply with the requirements at N.J.A.C. 13:44K-10.1, and all other applicable State and Federal statutes, rules, and regulations for recordkeeping, confidentiality, and disclosure of a client's medical record.  
13:44K-7.7    Prevention of fraud and abuse  
(a) In order to establish that a licensee has made a good faith effort to prevent fraud and abuse when providing services through telemedicine or telehealth, a licensee must establish written protocols that address:  
1. Authentication and authorization of users;  
2. Authentication of the client during the initial intake pursuant to N.J.A.C. 13:44K-7.4(a)1;  
3. Authentication of the origin of information;  
4. The prevention of unauthorized access to the system or information;  
5. System security, including the integrity of information that is collected, program integrity, and system integrity;  
6. Maintenance of documentation about system and information usage;  
7. Information storage, maintenance, and transmission; and  
8. Synchronization and verification of client profile data.  
13:44K-7.8    Privacy and notice to clients  
(a) Licensees who communicate with clients by electronic communications other than telephone or facsimile shall establish written privacy practices that are consistent with Federal standards under 45 CFR 160 and 164, which are incorporated herein by reference, relating to privacy of individually identifiable health information.  
(b) Written privacy practices pursuant to (a) above shall include privacy and security measures that assure confidentiality and integrity of client-identifiable information. Transmissions, including client email, prescriptions, and laboratory results must be password protected, encrypted electronic prescriptions, or protected through substantially equivalent authentication techniques.  
(c) A licensee who becomes aware of a breach in confidentiality of client information, as defined at 45 CFR 164.402, shall comply with the reporting requirements at 45 CFR 164.  
(d) Licensees, or their authorized representatives, shall provide a client, prior to evaluation or treatment, with copies of written privacy practices and shall obtain the client's written acknowledgement of receipt of the notice.  
(e) Licensees who provide services through telemedicine or telehealth, or their authorized representatives, shall, prior to providing services, give clients notice regarding telemedicine and telehealth, including the risks and benefits of being treated through telemedicine or telehealth and how to receive follow-up care or assistance in the event of an adverse reaction to the treatment or in the event of an inability to communicate as a result of a technological or equipment failure. A licensee shall obtain a signed and dated statement indicating that the client received this notice.  
(f) When telemedicine or telehealth is unable to provide all pertinent clinical information that a licensee exercising ordinary skill and care would deem reasonably necessary to provide care to a client, the licensee shall inform the client of this prior to the conclusion of the provision of care through telemedicine or telehealth and shall advise the client regarding the need for the client to obtain an additional in-person medical evaluation reasonably able to meet the client's needs.