Provider Alert: Check Your Compliance with the New Jersey Health Care Transparency Act
Responding to the American Medical Association’s July 2018 “Truth in Advertising” campaign, the New Jersey legislature articulated a compelling State interest in: “patients being promptly and clearly informed of the training and qualifications of the health care professionals who provide health care services,” and “being protected from potentially misleading and deceptive health care advertising that might cause patients to have undue expectations regarding their treatment and outcome.” Effective July 1, 2021, the Act will impose more stringent requirements on health care professionals’ advertising and communications, with the aim of increasing patient awareness and avoiding the unlicensed practice of medicine and/or individuals practicing beyond the scope of their licenses.
The Act, codified at N.J. Stat. § 45:1-67-72, places several new requirements on health care professionals and medical practices with regard to advertising and communication of their licensure and qualifications. The Act defines “health care professional” to include those licensed under N.J. Stat. § 45:1-15, which includes, but is not limited to, licensees in the practice of dentistry, medicine, nursing, optometry, pharmacy, and psychology. Under the Act “health care professional” does not include individuals licensed in electrology; genetic counseling; massage and bodywork therapy; mortuary science; or veterinary medicine.
Specifically, the Act requires that “[a]n advertisement for health care services that includes the name of a health care professional shall identify the type of licensure issued to the health care professional and shall not contain deceptive or misleading information, including, but not limited to, any affirmative communication or representation that misstates, falsely describes, holds out, or falsely details the health care professional’s skills, training, expertise, education, public or private board certification, or licensure.”
For purposes of the Act, an “advertisement” is defined as “any communication or statement, whether printed, electronic or oral, that names the health care professional in relation to his or her practice, profession, or institution in which the individual is employed, volunteers or otherwise provides health care services.” This includes:
- Business cards
- Patient brochures
- Audio and video
- Any other communication or statement used in the course of business
Notably, office building placards or exterior building signage are not included in the definition of advertisement under the Act.
The Act requires health care professionals to communicate their specific licensure to patients in the following manner:
- A name tag worn during all patient encounters which includes:
- A recent photograph of the health care professional;
- The full name of the health care professional;
- The health care professional’s licensed profession;
- The expiration date of the health care professional’s license.
- A poster or other writing, displayed in font of a sufficient size and placed in a clear and conspicuous manner in any office where the health care professional provides health care services, indicating the type of licensure held by the health care professional.
The Act further requires allopathic and osteopathic physicians who supervise, or are in collaborative relationships with, non-physician licensees to “clearly and conspicuously” post the schedule of the physician’s regular hours during which the physician is present in the office.
Penalties Under the Act
The enforcement language of the Act is contained in N.J. Stat. § 45:1-71, which identifies the following conduct as unlawful:
- Knowingly aiding, abetting, permitting, advising, or procuring an unlicensed person or entity to practice or engage in acts contrary to the profession practiced by the health care professional;
- Delegating or contracting for the performance of health care services by a health care professional when the individual delegating or contracting for performance knows, or has reason to know, that the individual does not have the required authority under a professional license to delegate or contract for performance; or
- Any other failure to comply with any provision of N.J. Stat. § 45:1-70.
The Act specifies that each day of a failure to comply with any provision of N.J. Stat. § 45:1-70 constitutes a separate punishable offense, which may result in professional sanctions, administrative fees, or other disciplinary action. Furthermore, any fees or other amounts billed to a patient by the health care professional found in violation of N.J. Stat. § 45:1-70 are effectively rescinded or refunded. As such, a provider’s failure to comply with the Act could result in a variety of consequences, including but not limited to publicly reported disciplinary actions, and potentially, recoupments by third-party payors for services determined to have been furnished by individuals practicing outside the scope of their licenses.
How Frier Levitt Can Help
The Act’s implementation is an occasion for all health care licensees in the State of New Jersey to review their advertising and communications practices to ensure compliance with the requirements of the Act. Frier Levitt’s team of attorneys is well-versed in compliance matters and ready to assist physician practices in reducing the risk of discipline or other adverse determinations. Contact us to speak to an attorney.