The proposed rule in summary:

1. Renames Clinic to Mental Health Outpatient Treatment and Rehabilitative Services Programs and removes outdated terms and provisions.

2. Adds Peer/Family Support Services to regulation:

• Added peer staffing definitions including certified peer specialists, credentialed family peer advocates and credentialed youth peer advocates who are qualified by personal experience and certified or provisionally certified.

• Defined Peer and Family Peer Recovery Support Services to mean services for adults and children/youth, including age-appropriate psychoeducation, counseling, person-centered goal planning, modeling effective coping skills, and facilitating community connections and crisis support to reduce symptomology and restore functionality. Family Peer Recovery Support Services also include engagement, bridging support, parent skill development, and crisis support for families caring for a child who is experiencing social, emotional, medical, developmental, substance use and/or behavioral challenges in their home, school, placement, and/or community to promote recovery, self-advocacy, and the development of natural supports and community living skills.

• Provides an allowance for unlimited number of preadmission Peer/Family Support Services for engagement into clinic and such services are not counted towards the 30 visit threshold reduction of reimbursement.

2. Provides off-site visits as allowable for all individuals receiving clinic services:

• Defines Off-Site Location as a location at which services are delivered. Locations including but not limited to the community, or the individual’s place of residence. The location in which the service is provided is determined by the individual’s needs and goals documented in the individual’s record.

• Adds requirements for policies and procedures for off-site locations including safety protocols.

• States that off-site services shall be provided in settings that are conducive to meeting treatment goals and objectives, be accommodating to the conditions and needs of those being served, be safe and accessible for all, and assure privacy for the delivery of services.

• Continues 150% reimbursement for all offsite locations.

3. Incorporates Intensive outpatient Program (IOP) in regulation, eliminating the need for waivers:

• Mental Health Outpatient Treatment and Rehabilitative Services Programs may obtain prior approval from the Office of Mental Health to provide Intensive Outpatient Program (IOP). IOP means providing additional and intensive outpatient services to individuals who may benefit from more intensive, time-limited treatment.

• Added IOP under service level needing OMH approval.

• Changed Clinic Based IOP to just IOP due to clinic name change.

4. Adds permanent rounding for services:

• Aligns with current Public Health Emergency (PHE) allowance to continue post PHE.

• For group therapy, allows for the option of up to 40, and less than 60 minutes be used with a 30% reduction in reimbursement.

5. Co-enrollment for clinics:

• Allows an individual to receive service from two clinics, as long as it is not the same service on the same day.

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 power and responsibility to adopt regulations that are necessary and proper to implement matters under their jurisdiction, and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for adults diagnosed with mental illness or children diagnosed with emotional disturbance, pursuant to an operating certificate.

Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

Section 43.01 of the Mental Hygiene Law gives the Commissioner authority to set rates for outpatient services at facilities operated by the Office of Mental Health. Section 43.02 of the Mental Hygiene Law provides that payments under the medical assistance program for outpatient services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

2. Legislative objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner’s authority to establish regulations regarding mental health programs. The proposed rule furthers the legislative policy of providing high quality outpatient mental health services to individuals with mental illness in a cost-effective manner. Part 599 of Title 14 NYCRR sets forth standards for the certification, operation and reimbursement of clinic treatment programs serving adults and children.

3. Needs and benefits: The State is looking to provide more flexibility for Clinics by aligning clinic with the recently approved State Plan Amendment. These changes allow treatment to be provided with more of a person-centered approach, moving clinicians away from treating the chart, to treating the individual. The proposed rule will add Peer/Family Support Services and allow for an unlimited number of preadmission Peer/Family Support Services for engagement, which would not count towards the thirty visit threshold reduction of reimbursement. The proposed rule will add off-site visits as allowable for all individuals receiving clinic services and incorporate Intensive Outpatient Program (IOP) in regulation, eliminating the need for waivers. The rule also proposes adding permanent rounding for services, which aligns with the current Public Health Emergency (PHE) allowance, to continue post PHE. The rule as proposed will allow an individual to enter into co-enrollment for clinics by permitting such individual to receive services from two clinics as long as it is not the same service on the same day.

4. Costs:

(a) Cost to State government: There will be costs associated with the addition of peer support services, but there is an anticipated savings from the addition of such services to Mental Health Outpatient Treatment and Rehabilitative Services (formerly known as Clinic). The estimated annual net aggregate increase in gross Medicaid expenditures attributable to this initiative contained in the budget for State Fiscal Year 2020/2021 is $1.1 million and $4.2 million for State Fiscal Year 2021/2022. Any costs above are Medicaid eligible and shared with the Federal Government.

(b) Cost to local government: These regulatory amendments will not result in any additional costs to local government.

(c) Cost to regulated parties: These regulatory amendments will not result in any additional costs to those regulated parties.

5. Local government mandates: These regulatory amendments will not result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.

6. Paperwork: No substantial increase in paperwork is anticipated as a result of the amendments to 14 NYCRR Part 599.

7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.

8. Alternatives: No alternatives were considered, as these amendments seek to conform regulations to the State Plan Amendment and CMS guidelines to ensure that clinics remains in compliance. Not conforming to the state plan amendment will cause confusion in the field regarding both service delivery and payment. Outpatient Mental Health Services are person-centered, recovery-oriented rehabilitative services designed to help individuals achieve and maintain recovery from mental health conditions by treating the symptoms of those conditions and restoring skills which have been lost due to the onset of mental illness and which are necessary for individuals to manage and cope with the symptoms and behaviors associated with mental health conditions and function successfully in the community. Medically necessary Outpatient Mental Health Services are those which are necessary to promote the maximum reduction of symptoms and/or restoration of an individual to their best age-appropriate functional level and are provided according to an individualized treatment plan.

9. Federal standards: The regulatory amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: This rulemaking will be effective upon publication of a 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 reporting, record keeping or other compliance requirements on small businesses or local governments.

No rural area flexibility analysis is required pursuant to section 202-bb(4)(a) of the State Administrative Procedure Act. 14 NYCRR Part 599 will align the clinic program with the State Plan Amendment and provide for greater flexibilities. The proposed rule will not impose any adverse economic impact on rural areas; therefore, a Rural Area Flexibility Analysis is not necessary with this notice.

The amendments to 14 NYCRR Part 599 are intended to provide regulatory relief to providers and allow flexibility in the delivery of mental health services to more accurately reflect the needs of recipients and standards of good clinical care. It is evident from the subject matter of this rule that it could only have a positive impact or no impact on jobs or employment, therefore a Job Impact Statement is not necessary with this notice.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 3rd year after the year in which this rule is being adopted.

Comment: The inclusion of authority for Nurse Practitioners to sign all types of plans regardless of patient insurance or medication status would significantly reduce burden during this staffing crisis.

Response: Section 599.10 9(c)(7) of the rule addresses this comment.

Comment: Requesting guidance around when an off-site service requires a satellite application.

Response: The topic will be addressed in guidance issued by the Office. Providing services offsite is not intended to replace satellite sites.

Comment: A commentor requested additional accountability for Medicaid managed care organizations (MCOs) and requested OMH to reach out to such MCOs to ensure that they meet their obligations.

Response: The comment is outside the scope of the regulation, MCO notification about changes to the regulation will occur prior to the rule becoming effective and training sessions will be provided.

Comment: A commentor supported the expansion of off-site services to include homes and community locations and the exclusion of off-site visits from the utilization threshold and recommended that off-site services be paid at the proposed rate of 150%, to be fiscally viable.

Response: The Office appreciates the comment and notes that the regulation The Office appreciates the comment and notes that is the intention to have offsite service paid at a rate of 150%. Offsite services are intended to be provided in locations, such as in the home or other community locations. Offsite rate codes are exempt from utilization threshold counts.

Comment: A commentor expressed support for all clinics to have the option to offer peer and family peer support services and encourages the Office to continue efforts to better recruit and retain peers, including the development of career ladders and to provide technical assistance.

Response: No amendment is required at this time. There is continuous development throughout the agency concerning peer guidance as well as training institutes and resources to support clinic and other programs in providing peer support services.

Comment: A commentor supported amendments to allow Intensive Outpatient Programs with prior approval, and without needing to go through a waiver process.

Response: Comment is supportive of the rule, no response necessary.

Comment: A commentor supported the amendments to allow co-enrollment and encouraged the Office to provide additional detail, either in regulation or through guidance.

Response: Comment is supportive of the rule, concerns will be addressed in guidance.

Comment: A commentor supported the amendments to allow nurse practitioners of psychiatry to sign treatment plans.

Response: Comment is supportive of the rule, no response necessary.

Comment: A commentor requested clarification as to whether existing programmatic and clinical guidance for intensive outpatient programs will change as a result of the proposed amendments.

Response: Specifics on these topics will be addressed in guidance.

Comment: A commentor recommended expanding Section 599.4(b)(4) to include experience working with serious emotional disturbance (SED) in order to include providers with a wider array of experience and clarify whether paraprofessional services are intended for adults only.

Response: The Office has clarified this concern by using the term Mental Illness, which is inclusive of SED.

Comment: A commentor requested clarification as to why family/collateral; psychotherapy, group psychotherapy, group psychotherapy and injectable psychotropic medication administration was removed from the list of services offered.

Response: The language was removed in error and has been added back into the final regulation.

Comment: A commentor recommended that OMH clarify the scope of practice for certified Peer Specialists, credentialed Family Peer Advocates, and credentialed Youth Peer and recommended that the State support the transition of supervision to experienced Peer Specialist, Family Peer, and Youth Peer providers with access to treatment plan consultation by a licensed practitioner as needed.

Response: The Office appreciates the comments and notes there is continuous development throughout the agency concerning peer guidance as well as training institutes and resources to support clinic and other programs in providing peer support services.

Comment: A commentor recommended additional guidance concerning the Office’s approach to collecting demographic information.

Response: The Office intends for each agency to continue to adhere to their demographic intake process and that there has been no change to this provision of the rule.

Comment: A commentor requested that individual psychotherapy for school-based programs with a duration of 40 minutes should be maintained at billing for a 45-minute duration.

Response: Individual Psychotherapy - Brief has a range of time between 16-37 minutes. Individual Psychotherapy – Extended has a range of time between 38-52 minutes. Clinics should bill according to those timeframes.

Comment: A commentor recommended that 599.14(f)(3) be clarified regarding whether an individual will have the flexibility to receive reimbursement for different services provided by multiple Mental Health Outpatient Treatment and Rehabilitative Service programs.

Response: The Office is currently developing additional guidance regarding co-enrollment.

Comment: This amendment removes Medicaid Fee-for-Service (FFS) reimbursement for specialty clinics providing procedures to children with a serious emotional disturbance enrolled in Medicaid Managed Care. This raises several questions:

Has the child SED clinic designation been terminated as a result of this amendment?

Response: Claims for services delivered to children who have been designated as serious emotional disturbance (SED) and have Medicaid managed care are required to submit the claims directly to managed care using the “non-SED” rate codes (e.g. 1504). SED has been in managed care since 7/1/2019.

Comment: A commentor asked for clarification on whether there will still be children receiving services on a Fee For Service basis?

Response: Medicaid enrolled children who are not enrolled in Medicaid managed care can be billed on a Fee for Service basis.

Comment: A commentor recommended guidance relating to off-site locations: addressing which types of off-site locations are permitted, reimbursement for providers’ travel time, transportation costs, and costs related to the use of electronic tools to document services rendered in off-site locations; clarifying what is considered a “regularly and routinely scheduled basis”; clarifying how “safe and accessible for all” should be applied to locations that necessarily may not be accessible to all, such as a particular location that the patient prefers.

Response: The Office is updating Offsite guidance and will address these areas further in such guidance.

Comment: A commentor recommended the Office provide flexibility and resources to support the implementation of changes relating to new written policy requirements.

Response: The Office appreciates the comment, and will take such into account in the development of guidance and implementation procedures.

Comment: A commentor recommended the Office streamline prior approval for optional services, to minimize unnecessary delays in access to care.

Response: Updated regulations allow for increased flexibilities than previously allowed relating to optional services, and no additional optional services were added requiring prior approval other than IOP which requires an Administrative Action.

Comment: A commentor supports the expansion of qualified care providers eligible to participate in service delivery, psychiatric consultation, psychiatric assessments and treatment planning.

Response: The Office appreciates the comment in support of the proposed rule.

Comment: A commentor wanted clarification as to whether a Psychiatrist can be a Licensed Physician that is not Board Certified?

Response: A psychiatrist is a physician who completed an ACGME accredited general adult psychiatry residency. A child psychiatrist is a physician who completed an ACGME accredited fellowship program in child and adolescent psychiatry.

Comment: A commentor was seeking specific information regarding re-admissions and whether a full new intake would be required.

Response: Adult program specific questions should be provided to the Clinic email box for assistance- [email protected]

Comment: A commentor wanted clarification regarding telehealth for medication management and renewals, and the end of flexibilities relating to initial face to face requirements via waiver.

Response: Adult program specific questions should be provided to the Clinic email box for assistance- [email protected]