OMH-38-14-00001-P Telepsychiatry Services in OMH-Licensed Clinics
9/24/14 N.Y. St. Reg. OMH-38-14-00001-P
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 38
September 24, 2014
RULE MAKING ACTIVITIES
OFFICE OF MENTAL HEALTH
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. OMH-38-14-00001-P
Telepsychiatry Services in OMH-Licensed Clinics
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
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 this service.
Text of proposed 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 or nurse practitioners from a site distant from the location of a recipient, where both the recipient and the physician or nurse practitioner are physically located at clinic sites licensed by the Office.
(2) Requests for approval to offer telepsychiatric 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) For telepsychiatric services provided to recipients whose primary language is other than English, the communication must include culturally competent translation services with a preference that any translator be present with the recipient.
(iv) Telepsychiatric 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 telepsychiatric 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, or risks associated with not having the services provided by telepsychiatry.
(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.
(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, telepsychiatric 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) Telepsychiatric 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 telepsychiatric 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, which must be submitted to the Office by a provider seeking approval to provide telepsychiatry services, or which has been approved by the Office to do so.
Text of proposed 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
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority: Section 7.07(c) of the Mental Hygiene Law charges the Office of Mental Health with the responsibility for seeing that persons with mental illness are provided with care and treatment, and that such care, treatment and rehabilitation is of high quality and effectiveness.
Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his/her jurisdiction.
2. Legislative Objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner’s authority to establish regulations regarding mental health programs.
3. Needs and Benefits: Technology has made it possible to increase access to health care, including behavioral health care, by utilizing secure interactive communications. Telepsychiatry is the use of electronic communication and information technologies to provide or support clinical psychiatric care at a distance. Telepsychiatry is appropriate in situations where on-site services are not available due to distance, location, time of day, or availability of resources. The many advantages offered through telepsychiatry have led to a rapid expansion of such programs across New York State and the rest of the country. While clinical practice standards are developing along with this proliferation, OMH regulations currently do not specifically address the use of this technology in programs under its jurisdiction. These amendments are intended to establish basic standards and parameters to approve the use of telepsychiatry in OMH licensed clinic programs that choose to offer this service.
4. Costs: Costs to implement telepsychiatry, in general, are significantly offset by the cost savings that can result from its use, in terms of commuting time, cost of fuel, losses due to “no show” appointments, and number of appointments that can be booked per day. Specifically:
(a) cost to State government: There are no new costs to State government as a result of these amendments.
(b) cost to local government: There are no new costs to local government as a result of these amendments.
(c) cost to regulated parties: For providers that wish to offer these services (which can include State operated clinics, clinics operated by local governments, or community based licensed clinics), the minimum requirements for an Internet-based solution are approximately $120 for a Webcam and then a WebEx end user license. Software licensing cost can vary, depending on the number of users at a clinic site.
5. Local Government Mandates: These regulations establish standards for providers (including local governments) that choose to offer telepsychiatry services. The provision of this service is not required, and thus the amendments themselves do not create new local government mandates.
6. Paperwork: For providers that wish to provide this service, written plans must be submitted for approval by the Office.
7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives: OMH has been granting regulatory waivers in accordance with 14 NYCRR Part 501 to clinic providers that have wished to provide telepsychiatry services. OMH could continue to grant such waivers on an ad hoc basis; however, given the interest in, and advantages to, this service, OMH wishes to advance these amendments to establish basic standards for the provision of telepsychiatry services, to ensure quality and efficacy.
9. Federal Standards: There are currently no federal standards specific to the provision of in-state telepsychiatry. However, the regulatory amendments conform to the minimum standards of the federal government with respect to the privacy and security of transmissions of protected health information (45 C.F.R. Parts 160 and 164, or HIPAA). In addition, the regulatory amendments are consistent with the definition of “telemedicine” issued by the Centers for Medicare and Medicaid Services (42 U.S.C. §§ 1395m(m)(1), 42 C.F.R.§ 410.78(a)(3)).
10. Compliance Schedule: The amendments would be effective upon adoption.
Regulatory Flexibility Analysis
The amendments to 14 NYCRR Part 599 are intended to establish basic standards and parameters to approve the use of telepsychiatry in OMH-licensed clinic programs that choose to offer this service. The provision of this service is not required, and the amendments themselves do not create new local government mandates. As there will be no adverse economic impact on small businesses or local governments as a result of these amendments, a regulatory flexibility analysis is not submitted with this notice.
Rural Area Flexibility Analysis
The amendments to 14 NYCRR Part 599 are intended to establish basic standards and parameters to approve the use of telepsychiatry in OMH-licensed clinic programs that choose to offer this service. The provision of this service is not required. The proposed rule will not impose any adverse economic impact on rural areas; therefore, a Rural Area Flexibility Analysis is not submitted with this notice.
Job Impact Statement
The amendments to 14 NYCRR Part 599 are intended to establish basic standards and parameters to approve the use of telepsychiatry in OMH-licensed clinic programs that choose to offer this service. The provision of this service is not required. As it is evident from the subject matter that there will be no adverse impact on jobs and employment opportunities as a result of these amendments, a Job Impact Statement is not submitted with this notice.
