1. Expansion in the types of providers who can deliver care via telehealth, as long as such telehealth services are appropriate to meet a patient’s needs and are within a provider’s scope of practice.

2. Addition of Audio-only, eConsult, Virtual Check-in, and Virtual Patient Education as telehealth modalities, as well as parameters for appropriately using those modalities and standards for reimbursement.

The revisions to radiology regulations are required to allow for the provision of teleradiology as well as remove outdated reimbursement processes. Specifically, the amendments provide:

1. Definitions for interventional and diagnostic radiology, which may be conducted without a physical encounter.

2. Reimbursement guidelines for physicians and hospitals billing for professional and technical and administrative components of a radiology service. References to an outdated fee schedule have been removed.

Statutory Authority:

Public Health Law section 2999-cc(2)(y) provides the Commissioner of Health with the authority to determine, in consultation with the Commissioners of the Office of Mental Health, the Office of Addiction Services and Supports, or the Office for People with Developmental Disabilities, other categories of providers authorized to provide telehealth services.

Public Health Law section 2999-cc(4) requires promulgation of regulations to cover the modality of audio-only telephone communication as telehealth in the medical assistance and child health insurance programs.

Public Health Law section 2999-ee provides the Commissioner of Health with the authority to specify in regulation additional acceptable modalities for the delivery of health care services via telehealth, including audio-only telephone communications, in consultation with the Commissioners of the Office of Children and Family Services, the Office of Mental Health, the Office of Addiction Services and Supports, or the Office for People with Developmental Disabilities.

Public Health Law section 201(1)(v) requires the Department of Health (Department) to act as the single State agency for Medicaid with the responsibility to supervise the plan required by Title XIX of the federal Social Security Act and to adopt regulations as may be necessary to implement this plan.

Social Services Law section 365-a requires Medicaid coverage of certain medical care, services and supplies as authorized in regulations of the Department, including x-ray services.

Legislative Objectives:

The legislative objective is to provide the Commissioner of Health with authority to determine the appropriate providers and modalities of telehealth necessary to increase access to health care services for Medicaid enrollees, especially for behavioral health, oral health, maternity care, care management, services provided in emergency departments and services provided to certain high-need populations.

Needs and Benefits:

These regulatory amendments are needed to ensure continuity of care provided to Medicaid enrollees. During the public health emergency, pursuant to Executive Orders that waived certain New York State laws and regulatory requirements related to telehealth, all Medicaid providers were authorized to utilize telehealth, including audio-only telephone or other audio-only technology. When these Executive Orders expired on June 24, 2021, the Department promulgated emergency regulations to authorize Medicaid providers to continuously provide services pursuant to these flexibilities to ensure continuity of care. These regulations will establish this authority permanently.

During the course of the public health emergency, Medicaid providers have adopted widespread use of telehealth, including through audio-only telephonic modalities and other audio-only technologies, as a means of delivering services to Medicaid beneficiaries. Providers have reported that this expansion of telehealth has improved access to care, improved patient experience, and improved provider satisfaction. Telehealth also has the potential to improve patient outcomes, although measurement of these outcomes requires further research. Furthermore, expanded use of telehealth during the pandemic has resulted in Medicaid program savings related to avoidance of emergency room and urgent care visits, and decreased utilization of Medicaid-covered non-emergency medical transportation services.

Telehealth mitigates provider access issues by connecting patients in rural areas with needed specialist care. Teleradiology, in particular, is needed to combat the lack of available radiologists. Teleradiology improves patient care by allowing radiologists to provide services remotely without having to be at the same location as the patient. Small rural hospitals often employ only one radiologist or no radiologist at all. In some cases, the interpretation of a radiological image may require input from a radiologist with a sub-specialty (e.g., MRI radiology, neuro-radiology, pediatric radiology, etc.). Professionals with sub-specialty expertise typically practice in large metropolitan facilities. Teleradiology allows for these trained specialists to fill a void by providing competent and timely professional radiology services, when a radiologist is not otherwise available, twenty-four hours a day, seven days a week.

Given that the Centers for Medicare and Medicaid Services has authorized continued use of telehealth through modalities that align with Article 29-G of the Public Health Law, the Department is issuing these regulations in order to ensure ongoing and continuous access to telehealth services for Medicaid members, during and after the COVID-19 pandemic. These regulations will expand the types of providers authorized to provide care via telehealth, define additional telehealth modalities, including audio-only, and allow for teleradiology. This continuous access is particularly important for members of the Medicaid population who are unable to access services in person, or who continue to be at risk for COVID-19.

Costs:

Costs to Regulated Parties:

There are no costs imposed on regulated parties by these regulations because the amendments provide reimbursement for health care services provided via telehealth.

Costs to the Administering Agencies, the State, and Local Governments:

Costs to administering agencies and the State associated with these amendments will be covered by existing State budget appropriations and anticipated federal financial participation. There are no costs imposed on local governments by these regulations because the amendments provide reimbursement for health care services provided via telehealth.

Local Government Mandates:

The proposed regulations do not impose any new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

The proposed regulations impose minimal paperwork requirements on regulated parties to claim Medicaid reimbursement for telehealth services provided to Medicaid enrollees.

Duplication:

There are no other State or Federal requirements that duplicate, overlap, or conflict with the statute and the proposed regulations.

Alternatives:

The Department considered the option of not promulgating these regulations, which would create an abrupt halt to certain telehealth flexibilities authorized during the public health emergency and which have proven vital to Medicaid members. In consultation with the Office of Mental Health and Office of Addiction Services and Supports, the Department determined that providing continuity of care to Medicaid enrollees is a public health priority and as such, decided to move forward with these regulations.

Federal Standards:

There are no minimum Federal standards regarding this subject.

Compliance Schedule:

These amendments shall be effective on publication of the Notice of Adoption in the State Register.

No regulatory flexibility analysis is required pursuant to section 202-b(3)(a) of the State Administrative Procedure Act. The proposed amendment does not impose an adverse economic impact on small businesses or local governments, and it does not impose any new reporting, record keeping or other compliance requirements on small businesses or local governments.

Cure Period:

Chapter 524 of the Laws of 2011 requires agencies to include a “cure period” or other opportunity for ameliorative action to prevent the imposition of penalties on the party or parties subject to enforcement when developing a regulation or explain in the Regulatory Flexibility Analysis why one was not included. This regulation creates no new penalty or sanction. Hence, a cure period is not necessary.

No rural area flexibility analysis is required pursuant to section 202-bb(4)(a) of the State Administrative Procedure Act. The proposed amendment does not impose an adverse impact on rural areas, and it does not impose any new reporting, record keeping or other compliance requirements on public or private entities in rural areas.

No job impact statement is required pursuant to section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature of the proposed amendment, that it will not have an adverse impact on jobs and employment opportunities.