The revision of 14 NYCRR Part 596 are intended to continue to expand the opportunity to offer telemental health services in the New York State regulated mental health system. The promulgation of these regulations is essential to preserve the health, safety and welfare of individuals with mental illness, and if OMH does not promulgate these rules on an emergency basis, there may be a gap in the offering of telehealth services, resulting in a detrimental effect on behavioral health care delivery systems and continued strain upon the State’s already strapped service system.

For all of the reasons outlined above, this rule is being adopted on an Emergency basis until such time as it has been formally adopted through the SAPA rule promulgation process.

• Changed the term Telemental Health to Telehealth to align across state agencies.

• Amended the definitions of telehealth, telehealth technologies, and originating site.

• Allows for the use of audio-only.

• Strengthened language around consent and recipient preference: Telehealth services may be provided only where clinically appropriate and with informed consent by the recipient. The recipient may withdraw consent at any time. A provider may not deny services to an individual who has a preference to receive services in-person.

• Expanded the definition of telehealth practitioner: (i) a prescribing professional eligible to prescribe medications pursuant to federal regulations; or (ii) staff authorized to provide in-person services are authorized to provide behavioral health services consistent with their scope of practice, in accordance with guidelines established by the office.

• Removes PROS and ACT specific language.

• Clarifies that telehealth practitioners must possess a current, valid license, permit, or limited permit to practice in New York State, or be designated or approved by the Office to provide services.

• Allows the ability for all telehealth practitioners to deliver services from outside NYS.

• Clarifies language around exclusion for purposes of seeking a court order for treatment over objection (vs old language of ordering medication over objection).

• Provides that Telehealth services may be used to satisfy any specific statutory examination, evaluation, or assessment requirement necessary for the involuntary removal from the community, or involuntary retention in a hospital pursuant to any of the provisions of Article 9 of the Mental Hygiene Law, where the telehealth practitioner is a physician and licensed to practice in New York and conducts the first evaluation for involuntary commitments of individuals. Further, telehealth services can only be utilized to fulfill one of the three physician-required activities in any removal or retention action and the individual must be asked to consent to the use of telehealth technology for the purposes of the examination, which can be embedded within the hospital’s general consent for treatment.

• Removes the requirement of an in-person initial assessment.

• For the purposes of this Part, telehealth services shall be considered face-to-face contacts when the service is delivered in accordance with the provisions of the plan approved by the Office pursuant to section 596.5 of this Part.

1. Statutory authority: Sections 7.09, 31.02 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 or her jurisdiction. Pursuant to Section 2999-dd of the Public Health Law, health care services delivered by means of telehealth are entitled to Medicaid reimbursement under Social Services Law Section 367-u.

2. Legislative objectives: To establish regulations regarding mental health programs, including the expansion of the opportunity to offer telehealth services.

3. Needs and benefits: The proposed amendments are intended to continue to expand the opportunity to offer telehealth services in the New York State regulated mental health system. The proposed changes are also in response to recent amendments to New York State Public Health Law § 2999-cc (as amended by Chapter 124 of the Laws of 2020) which may eventually lead to more flexibility for the provision of certain Medicaid-funded services using audio-only telephonic communication technology. The newly revised definition of “Telehealth” in this section provides that for the Medicaid and Child Health Insurance Plan, shall include audio-only telephone communication only to the extent defined in regulations as may be promulgated by the commissioner of the Department of Health (DOH). This amendment expands the types of practitioners who can be designated or authorized by this Office to provide these services, will allow practitioners to be physically located outside the State of New York while delivering services, and provide that practitioners can deliver services remotely without first conducting an in-person evaluation. Additionally, an evaluation or examination required as part of an involuntary removal from the community, involuntary retention in a hospital or Assisted Outpatient Treatment order pursuant to Article 9 of the Mental Hygiene Law can be conducted via telemental health.

Such amendments are necessary to allow providers to maintain continuity of care with their patients, rapidly evaluate and screen new patients, and offer crisis and support interventions during this difficult time. The promulgation of these regulations is essential to preserve the health, safety and welfare of individuals with mental illness who receive services through licensed and designated OMH providers. If OMH did not promulgate regulations on an emergency basis, providers will be unable to maintain the continuity and quality of care their patients are receiving as a number of these patients do not have any other way of accessing behavioral health services at this time. Immediately, this amendment would permit the continued access to mental health services for people who are vulnerable or at risk for contracting COVID and wish to continue treatment in the safest manner possible, while working towards their treatment goals, while not having to choose between treatment and safety.

4. Costs:

(a) Cost to State government: There are no 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: There are no new costs to regulated parties as a result of these amendments.

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

6. Paperwork: There are no new paperwork requirements as a result of the amendments.

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

8. Alternatives: It was determined that should the Office consider not moving forward with the proposed rule, it would have a detrimental effect on behavioral health care delivery. The field has consistently expressed support for the increase flexibility previously authorized during the public health emergency, and the ability to serve their populations fully during this period. They have also expressed concern about continuity of care and delivering necessary services should such flexibility be terminated. The proposed amendment intends to increase flexibility for providers wishing to deliver telelhealth services and conforms regulations to recent amendments to Section 2999-cc of the Public Health Law.

9. Federal standards: Currently states can choose to cover telehealth under Medicaid, as defined via their state plan amendment.

10. Compliance schedule: The office is promulgating these rules on an emergency basis. The permanent amendments to the regulation would be effective upon adoption, following the 60 day public comment period required by the State Administrative Procedure Act.

Effect of Rule:

There will be no adverse economic impact upon small businesses or local governments as a result of this rule making. The rule serves to update existing regulations and provide additional flexibilities that were permitted during the Public Health Emergency.

Compliance Requirements:

Additional compliance requirements are expected to be minimal, as telehealth has already been authorized during the public health emergency.

Professional Services:

No professional services are required by this regulation.

Economic and Technological Feasibility:

There are no economic or technological impediments to the rule changes.

Minimizing Adverse Impact:

This regulation is consistent with the existing flexibilities providers have utilized during the public health emergency. Therefore, any adverse impacts are expected to be minimal and are outweighed by the regulation’s intent to continue to provide broad access to services

Small Business and Local Government Participation:

The Office will notify such entities of the existence of these regulations and the opportunity to submit comments or questions to the Department.

Types and Estimated Numbers of Rural Areas:

Although this rule applies uniformly throughout the state, including rural areas, for the purposes of this Rural Area Flexibility Analysis (RAFA), “rural area” means areas of the state defined by Exec. Law § 481(7) (SAPA § 102(10)). Per Exec. Law § 481(7), rural areas are defined as “counties within the state having less than two hundred thousand population, and the municipalities, individuals, institutions, communities, and programs and such other entities or resources found therein.

Reporting, Recordkeeping, and other Compliance Requirements; and Professional Services:

This regulation imposes no additional paperwork. Although the regulation may require recordkeeping these records must already be maintained by facilities. Additionally, no additional professional services are required by this regulation.

Costs:

Costs are expected to be minimal, as telehealth has already been authorized during the public health emergency.

Economic and Technological Feasibility:

There are no economic or technological impediments to the rule changes.

Minimizing Adverse Impact:

This regulation is consistent with the existing flexibilities providers have utilized during the public health emergency. Therefore, any adverse impacts are expected to be minimal and are outweighed by the regulation’s intent to continue to provide broad access to services.

Rural Area Participation:

The Office will notify covered entities located in rural areas of the existence of these regulations and the opportunity to submit comments or questions to the Office.

The amendments to 14 NYCRR Part 596 are intended to improve mental health services by expanding the opportunity to offer telehealth services. 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.

Following the adoption of the emergency regulation amending Part 596, on November 15, 2022, the Office of Mental Health (OMH) received public comment. The majority of this feedback came from the provider community. OMH reviewed the comments and after careful consideration is anticipating minor revisions to the regulation.

Comment: A commentor recommended amending the regulation to include a requirement that the continued use of telehealth services be evaluated on a regular basis, preferably by a different professional than the person delivering the services, to determine whether in person services are preferred by the recipient or would be more effective.

Response: The Office considered the comment and no amendment is required. The rule as written requires the clinician to utilize telehealth services only where appropriate based upon their clinical judgment, which is an ongoing process. The Office will clarify further in guidance.

Comment: A commentor recommended amending the regulation to include a requirement that Informed Consent be defined as requiring that the recipient be regularly advised of the right to switch to or back to in person services on a regular basis and that such periodic reminders are documented in the clinical record.

Response: The Office considered the comment and no amendment is required. The rule as written permits the individual to withdraw consent at any time and requires the clinician to utilize telehealth services only where appropriate based upon their clinical judgment. The Office will clarify further in guidance.

Comment: A commentor recommended amending the definition of a practitioner pursuant to 596.4(ii) to state staff authorized by OMH to provide “in-person services which are otherwise authorized to be provided via telehealth and which are within the scope of practice of such staff person and the guidelines established by the Office.”

Response: The Office is reviewing the comment and will consider addressing in the rule or guidance as appropriate.

Comment: A commentor requested the regulation clarify the designation or approval process and to include the allowance of out of state licensed professionals to provide telehealth services.

Response: The Office has reviewed the comment and will address such concerns in Guidance. Additionally, current licensure laws specify who is authorized to practice in New York State.

Comment: Under 596.4 Definitions (e), can the phrase "and or collateral" be inserted? (e) Originating or "spoke" site means a site where the recipient [and or collateral] is physically located at the time mental health services are delivered...

Response: The Office is reviewing this comment for further rule promulgations.

Comment: A commentor recommended that amendments and guidance be developed which clarifies that informed consent allows the recipient to make the active choice between services provided in-person and via telehealth and recommends strengthening the requirement that providers proactively inform recipients about the in-person vs. Telehealth options.

Response: The Office determined that an amendment was not required and that additional clarification can be provided through guidance.

Comment: A Commentor recommended amendments to 596.1 (b) and (d) to align the rule with Mental Health Law § 33.21) which authorizes minors to consent to various mental health services.

Response: The Office is reviewing this comment for further rule promulgations.

Comment: A commentor noted that individuals with mental health and substance use disorders are over-represented in the criminal justice system and recommended the state ensure that telehealth services for behavioral and mental health treatment and services are equitably accessible to persons with mental health and substance use disorders who are incarcerated in New York’s prisons and jails, where regulated by NYS agencies.

Response: The Office appreciates this comment and will address in guidance where appropriate.

Comment: A commentor expressed concern for the removal of the initial in-person assessment required to determine clinical appropriateness of telehealth delivery for a patient’s mental health services.

Response: The Office considered the comment, and no amendment is needed. Clinical appropriateness will be addressed in the guidance.

Comment: A commentor recommended that the Office’s guidance for providers making determinations of telehealth appropriateness align with existing standards of care, which recognize the most appropriate clinical approach will differ based on disease state.

Response: The Office agrees with the comment and will address more fully in guidance.

Comment: A commentor expressed concern that the proposed rule should clarify that telehealth services are a component of mental health delivery, but should not supplant in-person care and recommends the addition of language that recognizes that for some conditions, periodic, in-person encounters are necessary to promote quality patient care.

Response: The amendment is not necessary as the rule currently addresses the use of telehealth as a component of mental health delivery where appropriate. The Office will address further in guidance.

Comment: A commentor recommended the restoration of ACT specific language to the rule until there is data which evaluates the impacts of telehealth service delivery on ACT program participants.

Response: The Office is reviewing this comment for further rule promulgations.