Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2021-024.
Submit comments by May 14, 2021, to:
Milagros B. Collazo, Executive Director
State Board of Marriage and Family Therapy Examiners
124 Halsey Street
PO Box 45007
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 State Board of Marriage and Family Therapy Examiners (Board), in consultation with the Alcohol and Drug Counselor Committee (Committee), proposes new Subchapter 7 to effectuate the provisions of P.L. 2017, c. 117.
N.J.A.C. 13:34C-7.1 sets forth that Subchapter 7 implements P.L. 2017, c. 117 and establishes that the subchapter applies to persons who are licensed or certified by the Committee. The rule requires an alcohol or drug counselor to hold a license or certificate, as applicable, issued by the Committee if they are physically located in New Jersey and are providing alcohol and drug counseling by means of telemedicine or telehealth, or if they are physically located outside of New Jersey, and are providing alcohol and drug counseling by means of telemedicine or telehealth, to clients located in New Jersey. The rule 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 alcohol and drug counseling in New Jersey and will not be required to obtain a license in New Jersey. Subsection (e) specifies that credentialed interns, as defined at N.J.A.C. 13:34C-6.1, who engage in telemedicine or telehealth shall do so consistent with P.L. 2017, c. 117 (N.J.S.A. 45:1-61 et seq.) and the regulations of their respective licensing board.
N.J.A.C. 13:34C-7.2 provides definitions for the terms used in Subchapter 7. The following terms are defined: "asynchronous store-and-forward," "Board," "Committee," "cross-coverage," "distant site," "licensee," "on-call," "originating site," "proper licensee-client relationship," "telehealth," and "telemedicine." The Committee notes that for purposes of Subchapter 7, "licensee" includes individuals who are licensed or certified by the Committee.
N.J.A.C. 13:34C-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 a certified alcohol and drug counselor or any licensee working under supervision is independently responsible for determining whether alcohol and drug counseling can be provided through telemedicine or telehealth in a manner that is consistent with in-person standards of care.
N.J.A.C. 13:34C-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 licensed clinical alcohol and drug counselor can provide services through telemedicine or telehealth, he or she is required to review a client's medical history and any available medical records that are relevant to substance use and addictive disorders, and mental health history. The section requires a licensed clinical alcohol and drug counselor to determine if services can be provided through telemedicine or telehealth with the same standard of care as if the services were provided in-person. This determination has to be made prior to each unique client encounter. Before providing services through telemedicine or telehealth, a licensed clinical alcohol and drug counselor has to provide a client with the opportunity to sign a consent form authorizing the release of client records to the client's primary care licensed clinical alcohol and drug counselor or other healthcare provider identified by the client. Before a certified alcohol and drug counselor can provide services through telemedicine or telehealth, a certified alcohol and drug counselor must have his or her supervisor comply with the requirements above concerning reviewing the client's medical history and records and mental health history, determining that services can be provided through telemedicine or telehealth with the same standard of care, and providing clients with the opportunity to sign a consent form authorizing the release of records. Once that review and determination is made by the licensed clinical alcohol and drug counselor, the certified alcohol and drug counselor must then independently review the client's medical history and records and mental health history and determine that services can be provided through telemedicine or telehealth with the same standard of care as if the services were provided in-person. 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. 13:34C-7.5 permits a licensee to provide alcohol and drug counseling through telemedicine and to support and facilitate the provision of alcohol and drug counseling, as applicable, 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, a contact phone number that is valid for the duration of the session, and record this information in the client's record. If, during the session, contact with the client is interrupted, once contact is re-established the licensee shall re-verify the client's location. 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 or medical records that are relevant to substance use and addictive disorders, and mental health history provided by a client 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. 13:34C-7.6 requires licensees to maintain records of care provided to clients through telemedicine or telehealth. Such records must comply with the requirements at N.J.A.C. 13:34C-4.1 and all other statutes and rules governing recordkeeping, confidentiality, and disclosure.
N.J.A.C. 13:34C-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; maintenance of documentation; information storage, maintenance and transmission; and verification of client data.
N.J.A.C. 13:34C-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 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 breach as required 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 which 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 Board 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 Committee believes the proposed new rules will have a positive social impact in that they will facilitate the use of communication technologies to provide alcohol and drug counseling while protecting clients who receive such services through telemedicine or telehealth.
Economic Impact
The Committee anticipates that the proposed new rules may have an economic impact on licensees and certificate holders who choose to provide alcohol and drug counseling 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 and certificate holders may incur costs in obtaining such communication technologies. The Committee does not anticipate that the proposed new rules will have any other economic impact.
Federal Standards Statement
Requirements at N.J.A.C. 13:34C-7.8 impose the same standards for privacy of communications as are imposed at 45 CFR 160 and 164, which are incorporated into the rule. There are no other Federal laws or standards applicable to the proposed new rules.
Jobs Impact
The Committee does not believe that proposed new rules will result in the creation or loss of jobs in the State.
Agriculture Industry Impact
The Committee does not believe that proposed new rules will have any impact on the agriculture industry in the State.
Regulatory Flexibility Analysis
Currently, the Committee licenses approximately 2,300 licensed clinical alcohol and drug counselors and 700 certified alcohol and drug counselors. If these licensees are considered "small businesses" within the meaning of the Regulatory Flexibility 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 Committee does not believe that licensees or certificate holders 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 alcohol and drug counseling 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 proposed new rules would evoke a change in the average costs associated with housing because the proposed new rules concern the provision of alcohol and drug counseling 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 regulation 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 alcohol and drug counseling through telemedicine or telehealth.
Racial and Ethnic Community Criminal Justice and Public Safety Impact
The Committee 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: