At the start of the COVID-19 pandemic in 2020, New Jersey declared a COVID-19 State of Emergency, issuing orders that temporarily suspended N.J.S.A. 45:1-62(e) and thereby permitted the prescribing of Schedule II controlled dangerous substances without an initial or follow-up in-person visit. The New Jersey State Board of Medical Examiners recently announced (and notified physicians via email) that New Jersey has terminated the COVID-19 State of Emergency, and physicians are once again required to comply with N.J.S.A. 45:1-62(e).
Key Requirements and Impact on Stimulant Prescribing
N.J.S.A. 45:1-62(e) states that Schedule II controlled dangerous substances may only be prescribed through telemedicine “after an initial in-person examination of the patient, as provided by regulation, and a subsequent in-person visit with the patient shall be required every three months for the duration of time that the patient is being prescribed the Schedule II controlled dangerous substance.”
N.J.S.A. 45:1-62(e) also offers an exception to the in-person visit requirement when prescribing Schedule II stimulants to minors, provided that the healthcare provider uses interactive, real-time, two-way audio and video technologies and first obtains written consent from the minor’s guardian to waive the in-person visit requirement. The New Jersey State Board of Medical Examiners has made clear that these in-person requirements apply “regardless of any continued flexibilities in federal law.”
Compliance and Multistate Licensing Considerations
This change affects physicians who practice telemedicine nationwide with licensure in multiple states, including New Jersey. Many of these practitioners are concerned that some patients will not be able to come for an in-person visit before they run out of medication. Others outside of New Jersey, but licensed in the state, run telehealth practices from their home and do not have office space to see patients.
Another concern, however, looms large with many prescribers, especially psychiatrists and pediatricians: practitioners should understand that the statute also applies to stimulants. At the time of the original enactment of the New Jersey Controlled Substances Act, the Legislature included schedules of drugs that were, at the time, consistent with federal schedules. Stimulants at that time were considered Schedule III substances. However, N.J.S.A. 24:21-3(a) gives the Director the authority to add, delete, or reschedule any substance included in the statutory schedules.
Additionally, and more specifically, N.J.S.A. 24:21-3(c) provides that any substance designated, rescheduled, or deleted under federal law shall be similarly scheduled under state law unless the Director files a timely objection. (See also N.J.A.C. 13:45H-1.7.) Stimulants, including Ritalin and Adderall, were rescheduled as Schedule II substances under federal law and are now similarly scheduled in New Jersey pursuant to the cited provisions.
Lastly, for providers who are licensed in multiple states, including those with multistate telemedicine licenses, discipline in New Jersey could put their multistate license in danger, as well as result in reciprocal state licensing board actions in other jurisdictions where they are licensed to practice medicine.
Conclusion
In sum, this means that, pursuant to N.J.S.A. 45:1-62(e), a practitioner must conduct an initial in-person examination, as well as in-person visits every three months (other than for minors satisfying the statutory criteria) if the practitioner intends to prescribe Schedule II substances, including stimulants.
How Frier Levitt Can Help
Healthcare providers, telehealth companies, and prescribers should review their policies and prescribing workflows to ensure compliance with New Jersey’s in-person examination requirements. Contact Frier Levitt to discuss how these changes may affect your telehealth operations and to ensure compliance with evolving federal and state controlled-substance regulations.
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