OMH-38-14-00001-A Telepsychiatry Services in OMH-Licensed Clinics
2/11/15 N.Y. St. Reg. OMH-38-14-00001-A
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 6
February 11, 2015
RULE MAKING ACTIVITIES
OFFICE OF MENTAL HEALTH
NOTICE OF ADOPTION
I.D No. OMH-38-14-00001-A
Filing No. 59
Filing Date. Jan. 27, 2015
Effective Date. Feb. 11, 2015
Telepsychiatry Services in OMH-Licensed Clinics
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 599.17 to Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 7.07, 7.09 and 31.04
Subject:
Telepsychiatry services in OMH-licensed clinics.
Purpose:
Establish basic standards and parameters to approve telepsychiatry in OMH-licensed clinic programs choosing to offer service.
Text of final rule:
A new Section 599.17 is added to Title 14 NYCRR to read as follows:
§ 599.17 Telepsychiatry services.
(a) Definition of Telepsychiatry. For purposes of this Section, “telepsychiatry” means the use of two-way real-time interactive audio and video to provide and support clinical psychiatric care at a distance. Such services do not include a telephone conversation, electronic mail message, or facsimile transmission between a clinic and a recipient or a consultation between two professional or clinical staff (as such terms are defined in this Part), although these activities may support telepsychiatry services.
(b) Approval to Offer Telepsychiatry Services.
(1) Telepsychiatry services may be authorized by the Office for assessment and treatment services provided by physicians who are board certified or board eligible in psychiatry, or nurse practitioners qualified in psychiatry, from a site distant from the location of a recipient, where both the recipient and such physician or nurse practitioner are physically located at clinic sites licensed by the Office.
(2) Requests for approval to offer telepsychiatry services shall be submitted to the Field Office serving the area in which either licensed clinic is located. Such Field Office may make an on-site visit prior to issuing approval.
(3) Approval of the Office will be based on submission and review of a written plan to provide telepsychiatry services that addresses the following standards and procedures:
(i) All telepsychiatry services must be performed on dedicated secure transmission linkages that meet minimum federal and state requirements, including but not limited to 45 C.F.R. Parts 160 and 164 (HIPAA Security Rules), and which are consistent with guidelines of the Office. Transmissions must employ acceptable authentication and identification procedures by both the sender and the receiver.
(ii) Confidentiality must be maintained as required by Mental Hygiene Law Section 33.13 and 45 C.F.R. Parts 160 and 164 (HIPAA Privacy Rules).
(a) All existing confidentiality requirements that apply to written medical records shall apply to services delivered by telecommunications, including the actual transmission of the service, any recordings made during the time of transmission, and any other electronic records.
(b) The spaces occupied by the recipient and the distant physician or nurse practitioner both must meet the minimum standards for privacy expected for recipient-clinician interaction at a single licensed clinic location.
(iii) Culturally competent translation services shall be provided when the recipient and distant physician or nurse practitioner do not speak the same language.
(iv) Telepsychiatry services provided to recipients under age 18 may include clinical staff, as such term is defined in this Part, in the room with the recipient. Such determinations shall be clinically based, consistent with clinical guidelines issued by the Office.
(v) All telepsychiatry sites must have a written procedure detailing the availability of face-to-face assessments by a physician or nurse practitioner in an emergency situation.
(vi) Procedures for prescribing medications shall be identified.
(vii) The recipient shall be enrolled at only one of the two sites.
(a) If the recipient is enrolled at the site away from the physician or nurse practitioner, such physician or nurse practitioner shall prepare appropriate progress notes and securely forward them to the clinic as a condition of reimbursement.
(b) If the telepsychiatry services for a particular recipient are a regular part of the recipient’s treatment plan, the physician or nurse practitioner must coordinate with the responsible professional at the clinic of enrollment, and prepare and update the treatment plan in accordance with applicable provisions of this Part to permit the clinic to be reimbursed for continuing services.
(viii) The recipient shall be provided with basic information about telepsychiatry and shall provide his or her consent to participate in services utilizing this technology. The recipient has the right to refuse to participate in telepsychiatry services and must be made aware of the alternatives including any delays in service, need to travel, risks associated with not having the services provided by telepsychiatry, or right to select another provider.
(ix) There must be a written procedure detailing the contingency plan when there is a failure of the transmission or other technical difficulties that render the service undeliverable.
(x) A review of telepsychiatry services shall be included in the provider’s quality management process.
(4) Clinics approved to offer telepsychiatry services shall be provided with written authorization to do so by the Field Office. Upon such approval, telepsychiatry services will be identified as an optional service on a clinic provider’s operating certificate.
(c) Reimbursement standards.
(1) Telepsychiatry services must be provided by a physician or nurse practitioner who possesses a current, valid license to practice in New York State.
(2) For the purposes of this Section, telepsychiatry services shall be considered face-to-face contacts.
(3) To be eligible for Medicaid reimbursement, telepsychiatry services must meet all requirements of this Part applicable to assessment and treatment services, and must exercise the same standard of care as in-house delivered services.
(4) Telepsychiatry services will be reimbursed at the same rates for identical procedures provided by on-site physicians or nurse practitioners.
(d) Guidance. The Office shall post implementation guidance on its public website to assist in the provision of telepsychiatry services. Such guidance shall include:
(1) clinical guidelines; and
(2) technology guidelines, including:
(i) the minimum technology thresholds (i.e., equipment, bandwidth, videoconferencing software, network specifications, carrier selection, hub/bridge, and security specifications), which shall be updated as new technology is approved; and
(ii) the form or format regarding the technology and communications to be used.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 599.17(a), (b)(1), (2), (3), (4), (c)(2), (4) and (d).
Text of rule and any required statements and analyses may be obtained from:
Sue Watson, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, (518) 474-1331, email: Sue.Watson@omh.ny.gov
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement (RIS) is not included with this notice since the changes to the final adopted rule do not necessitate a change to the RIS. The revisions are non-substantive and serve to provide clarity with respect to the expectations of the Office of Mental Health. The changes include the following:
- clarification that telepsychiatry services may be provided by physicians who are board certified or board eligible in psychiatry or nurse practitioners qualified in psychiatry;
- clarification that culturally competent translation services shall be provided when the recipient and distant physician or nurse practitioner do not speak the same language, and removal of the requirement that a translator be physically located with the recipient;
- the term “telepsychiatric” has been changed to “telepsychiatry”;
- inclusion of language stating that telepsychiatry will be listed as an optional service on operating certificates of clinics that have been granted approval to offer such services; and
- clarification with respect to the technology guidelines that will be posted on the OMH website.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not included with this notice since the changes made to the final adopted rule are non-substantive and serve to provide clarity with respect to the expectations of the Office of Mental Health. The amendments will not have an adverse economic impact upon small businesses or local governments.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not included with this notice since the changes made to the final adopted rule are non-substantive and serve to provide clarity with respect to the expectations of the Office of Mental Health. The amendments will not impose any adverse economic impact on rural areas.
Revised Job Impact Statement
A revised Job Impact Statement is not included with this notice since the changes made to the final adopted rule are non-substantive and serve to provide clarity with respect to the expectations of the Office of Mental Health. The amendments to 14 NYCRR Part 599 will not have a negative impact on jobs or employment opportunities.
Initial Review of Rule
As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is no later than the 5th year after the year in which this rule is being adopted.
Assessment of Public Comment
The Office of Mental Health (OMH) received eight letters of comment in response to the proposed rule regarding the use of telepsychiatry in OMH-licensed clinics. The comments are addressed below:
Comment: A professional medical specialty organization submitted a letter of comment stating that only those health care professionals with appropriate training and expertise should be authorized to provide telepsychiatry services. Therefore, they believe the regulation should be amended to clarify that only a physician board certified or board eligible in psychiatry or a nurse practitioner qualified in psychiatry should provide telepsychiatry services.
Response: OMH agrees. The agency has rephrased the provision clarify this credentialing requirement in the final adopted rule.
Comment: A few commenters stated that OMH should allow telepsychiatry services to be expanded beyond physicians and nurse practitioners to include the full spectrum of providers, consistent with regulations of the Centers for Medicare and Medicaid Services (CMS). Another commenter stated that physician assistants should be included in the list of providers who are allowed to perform the service.
Response: This recommendation is beyond the scope of the proposed amendments, which are intended to address New York State’s crucial shortage of prescribing providers. Therefore, the agency’s first priority is to address treatment services delivered by these types of providers. However, OMH is not opposed to moving in this direction over time.
Comment: Several commenters stated that telepsychiatry services should be not limited to OMH-licensed clinics. They felt that the recipients’ locations, as well as the originating sites, should be expanded to allow flexibility in the delivery of services. One commenter stated that the “hub” and “spoke” sites are inconsistent with current New York State initiatives including Health Homes, HARPS, and the intent of the 1915(i) waiver services.
Response: This recommendation is beyond the scope of this proposed amendment, the purpose of which is to facilitate the use of telepsychiatry to connect more patients to prescribing providers. Nonetheless, the agency has every intention to further expand into additional telehealth services in partnership with other healthcare agencies and providers and will continue to work in this direction.
Comment: Two commenters stated that the term “telepsychiatry” should be changed to “telebehavioral health”. One commenter believes that OMH should work with the New York State Department of Health and the New York State Office of Alcoholism and Substance Abuse Services to promulgate regulations that permit telepsychiatry across all health settings. A healthcare association stated that OMH should allow for telepsychiatry services between differently licensed providers (e.g., Article 28 and 31 providers).
Response: The term “telepsychiatry” is consistent with the nomenclature in the field and does not in itself preclude the use of telemedicine across the spectrum of psychiatric and behavioral health care.
Comment: One commenter stated that Medicaid reimbursement under the regulation should be reconciled with New York’s Medicaid policy.
Response: Reimbursement for telepsychiatry has already been addressed with the New York State Department of Health (DOH) and conforms to reimbursement criteria defined by the Centers for Medicare & Medicaid Services (CMS): the same as face-to-face encounters.
Comment: One commenter expressed concern regarding provisions related to the use of interpreters. The commenter believes that, due to the natural tendencies of recipients to direct communication toward interpreters rather than providers, the regulation should be amended so the interpreter is present with the provider, rather than recipient. The commenter believes this is especially critical with providing telepsychiatry services to patients whose primary language is American Sign Language.
Response: OMH agrees. The agency has removed the language requiring the interpreter be physically present with the patient so greater communication versatility will allow for culturally competent treatment.
Comment: The above-referenced commenter stated that the regulation is written to address recipients who do not speak English, but in some cases, providers do speak their language. The commenter believes the regulation should be amended to clarify that culturally competent translation services be provided when the recipient and the provider do not speak the same language.
Response: OMH agrees. The agency has amended the language to simply read, “culturally competent translation services will be provided when the recipient and the provider do not speak the same language.”
Comment: This same commenter suggested that due to the scarcity of interpreter services in many areas of the state, the regulations should allow for the use of “language-lines” by three-way calling or speaker phones. This commenter also believes that clarification should be provided with respect to the term “face-to-face”.
Response: The term “face-to-face” has the same meaning as it has throughout the Part 599 regulations. The amendment indicates those encounters that require face-to-face contact in the Part 599 regulations can be accomplished through telepsychiatry, and will be sufficient for billing purposes. With respect to suggesting a reference to language-lines, they are one of many ways in which culturally competent treatment services can be provided, and as such are already implicit in this requirement.
