N.Y. Comp. Codes R. & Regs. tit. 14 § 596.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 596.6 - Requirements for Telehealth Services

(a) General requirements.

(1) The distant/hub site telehealth practitioner must:

(i) possess a current, valid license, permit, or limited permit to practice in New York State, or is designated or approved by the Office to provide services;

(ii) directly render the telehealth service;

(iii) abide by the laws and regulations of the State of New York including the New York State Mental Hygiene Law and any other law, regulation, or policy that governs the assessment or treatment service being provided;

(iv) adhere to the same laws, rules, and regulations and exercise the same standards of care and competencies required for in-house in-person delivered services;

(v) utilize evidence-based telehealth practice guidelines and standards of practice, to the degree they are available, to ensure recipient safety, quality of care, and positive outcomes; and

(vi) deliver services from a secure site/location which ensures the minimum standards for privacy for recipient- telehealth practitioner interaction are met . Telehealth practitioners may deliver services from a site located within the United States or its territories, which may include the practitioner's place of residence, office, or other identified space approved by the Office of Mental Health and in accordance with guidelines established by the Office.

(2) The telehealth practitioner must not be terminated, suspended, or barred from the Medicaid or Medicare program.

(3) If the originating/spoke site is a hospital, the telehealth practitioner at the distant/hub site must be credentialed and privileged by such hospital, as necessary and consistent with applicable accreditation standards.

(4) Telehealth services must be rendered using telehealth technologies. A provider of services approved to offer telehealth services shall adopt and implement technology in a manner that supports the standard of care to deliver the services, the features of which include at least:

(i) The technology and equipment utilized in the provision of telehealth services must be of sufficient quality, size, resolution and clarity where applicable such that the provider of services can safely and effectively provide the telehealth services;

(ii) The technology and equipment utilized in the provision of telehealth services or the use of audio or video telephone communication must be compliant with the Health Insurance Portability and Accountability Act (HIPAA).

(5) Telehealth practitioners must verify the identity of the recipient before commencing each telehealth encounter.

(6) A notation must be made in the clinical record that indicates that the service was provided via telehealth and indicating whether audio only services were provided which specifies the time the service was started and the time it ended.

(7) Telehealth services provided to recipients under age 18 may include staff members of the originating/spoke site in the room with the recipient. Such determinations shall be clinically based, consistent with Guidelines issued by the Office.

(8) For the purposes of billing, 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. Providers should refer to the program specific guidelines established by the Office to determine authorized use of telehealth services.

(9) Culturally competent interpreter services shall be provided in the recipient's preferred language when the recipient and telehealth practitioners do not speak the same language.

(10) The telehealth practitioner providing telehealth services at a distant/hub site shall be considered an active part of the recipient's treatment team and shall be available for discussion of the case or for interviewing family members and others, as the case may require. Such telehealth practitioner shall prepare appropriate progress notes and securely forward them or directly enter them in to the originating/spoke provider health record as a condition of reimbursement.

(11) Telehealth services shall not be used:

(i) for purposes of seeking a court order for treatment over objection; or

(ii) restraint or seclusion, as defined in section 526.4 of this Title.

(12) Telehealth services may be used to satisfy specific statutory examination, evaluation, or assessment requirement necessary for the involuntary removal from the community, or involuntary retention in a hospital pursuant to section 9.27 of the Mental Hygiene Law, if such services are utilized in compliance with the following:

(i) The telehealth practitioner must be a physician and licensed to practice in New York.

(ii) Telehealth services can only be utilized to fulfill one of the three physician-required activities in a removal or retention action, i.e., either one of the two certifying physicians at the emergency hospital site, or the confirming physician at the receiving hospital site, can perform their required examination, evaluation, or assessment through telehealth technology.

(iii) 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. If the individual refuses or is not able to give consent to treatment, the effort to obtain consent must be documented in the clinical record, and the examination may proceed.

(iv) All three physicians must sign the form at whatever location they are at the time of the examination, regardless of whether they are at the originating/spoke site or the distant/hub site. If the telehealth practitioner is one of the examining physicians, a copy of his or her signed Form OMH 471 must be received in the emergency hospital site before the individual is transported to the receiving hospital. The telehealth physician may sign their form electronically as permitted by the Electronic Signature and Records Act (ESRA). The transmission of the form may be electronically received, as long as in both instances the transmission is securely made over an encrypted line or network.

(v) When telehealth services are used as part of a 9.27 retention action, forms amended by the Office of Mental Health to account for the use of such services shall be utilized.

(vii) Telehealth consultation. Nothing herein shall preclude the additional use of telehealth services in retention actions on a consultative basis, rather than as a means of partially fulfilling a statutory requirement for any Mental Hygiene Law Article 9 evaluation. The responsibility for signing the commitment papers remains with the physician who actually conducted the evaluation of the individual at the facility, not the psychiatrist who provided the telehealth consultation.

(13) Telehealth services may be used to satisfy specific statutory examination, evaluation, or assessment requirement necessary for the immediate observation, care and treatment in a hospital, pursuant to section 9.39 of the Mental Hygiene Law, if such services are utilized in compliance with the following:

(i) The telehealth practitioner must be a physician and licensed to practice in New York.

(ii) Telehealth services can only be utilized to fulfill one of the two physician-required activities in a removal or retention action, i.e., either the certifying physician or confirming staff psychiatrist at the emergency hospital site, can perform their required examination, evaluation, or assessment through telehealth technology.

(iv) All physicians must sign the form at whatever location they are at the time of the examination, regardless of whether they are at the originating/spoke site or the distant/hub site. If the telehealth practitioner is the examining physician, a copy of their signed Form OMH 474 must be received in the emergency hospital site before the individual is transported. The telehealth physician may sign their form electronically as permitted by the Electronic Signature and Records Act (ESRA). The transmission of the form may be electronically received, as long as in both instances, the transmission is securely made over an encrypted line or network.

(v) When telehealth services are used as part of a 9.39 retention action, forms amended by the Office of Mental Health to account for the use of such services shall be utilized.

(b) Protocols and Procedures. A provider of services approved to utilize telehealth Services must have written protocols and procedures that address the following:

(1) Each recipient for whom the provision of telehealth services may be offered must be evaluated to determine whether the telehealth modality is appropriate, given the recipient's treatment needs.

(2) Informed Consent: Protocols must afford persons receiving services the opportunity to provide informed consent to participate in any services utilizing telehealth services, including the right to refuse these services and to be apprised of the alternatives to telehealth services, including any delays in service, need to travel, or risks associated with not having the services provided by telehealth, and risks associated with receiving telehealth services in an off-site location. Such informed consent may be incorporated into the informed consent process for in-person care, or a separate informed consent process for telehealth services may be developed and used.

(i) The recipient must be provided with basic information about telehealth services, including both benefits and risks, and shall provide his or her informed consent to participate in services utilizing this technology. For recipients under age 18 for whom informed consent cannot be obtained pursuant to Mental Hygiene Law Section 33.21, such information shall be shared with and informed consent obtained from the recipient's parent or guardian.

(ii) Recipients, or a minor recipient's parent or guardian, shall be informed how to verify a telehealth practitioner's professional license.

(iii) The recipient has the right to refuse to participate in telehealth services, in which case services must be conducted in-person by appropriate clinicians.

(iv) Telehealth sessions shall not be recorded without the recipient's consent, which shall be documented in the clinical record.

(3) Confidentiality: Protocols and procedures must be maintained as required by Mental Hygiene Law Section 33.13 and HIPAA at 45 CFR Parts 160 and 164 and shall apply to both the originating/spoke site and the distant/hub site. Such protocols shall ensure that:

(i) All current confidentiality requirements and protections that apply to written clinical/medical records shall apply to services delivered by telehealth technologies, including the actual transmission of the service, any recordings made during the time of transmission, and any other electronic records.

(ii) The spaces occupied by the recipient at the originating/spoke site, where non-residential, and the practitioner at the distant/hub site must meet the minimum standards for privacy expected for recipient-clinician interaction at a single Office of Mental Health licensed expected for recipient-clinician interaction at a single Office of Mental Health licensed location.

(4) All telehealth services must be conducted via telehealth technologies 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.

(5) Psychiatric emergencies: All telehealth service sites must have a written procedure detailing the availability of in-person assessments in an emergency situation.

(6) Prescribing medications via telehealth: Procedures for prescribing medications through telehealth must be identified and must be in accordance with applicable New York State and federal law, including but not limited to the federal Ryan Haight Act (21 U.S.C. section 823(f), New York State Education Law sections 6902(3)(a)(ii), 7606, 7708, and 8407; and regulations of the New York State Department of Health at 10 NYCRR Part 80.

(7) Recipient rights: Recipient rights policies must ensure that each individual receiving telehealth services:

(i) is informed and made aware of the role and license information of the telehealth practitioner at the distant/hub site, as well as staff at the originating/spoke site, where non-residential, who are responsible for follow-up or on going care;

(ii) is informed and made aware of the location of the distant/hub site and all questions regarding the equipment, the technology, etc., are addressed;

(iii) has the right to have appropriately trained staff immediately available to him/her while receiving the telehealth service to attend to emergencies or other needs;

(iv) has the right to be informed of all parties who will be present at each end of the telehealth transmission; and

(v) if the recipient is a minor, the recipient and his or her parent or guardian shall be given the opportunity to provide input regarding who will be in the room with the recipient when telehealth services are provided.

(8) Quality of Care: All telehealth service sites shall have established written quality of care protocols to ensure that the services meet the requirements of New York State and federal laws and established recipient care standards. A review of telehealth services shall be included in the provider's quality management process.

(9) Contingency Plan: All telehealth service sites must have a written procedure detailing the contingency plan when there is a failure of the transmission or other technical difficulties that render the service undeliverable.

(10) Ownership and Maintenance of Records:

(i) The program in which the recipient is admitted shall be responsible for obtaining and maintaining a complete clinical record as if the recipient were seen in-person at such site.

(ii) The telehealth practitioner must have immediate access to the recipient health record.

(iii) The distant/hub site shall maintain copies of all documentation completed by the distant/hub telehealth practitioner unless the telehealth practitioner records the information directly within the originating/spoke site's electronic medical record system.

(c) Guidelines of the Office.

The Office shall develop guidelines to assist providers in complying with the provisions of this Part and in achieving treatment goals through the use of telehealth Services. The Office shall post such guidelines on its public website.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.6

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

Amended New York State Register July 3, 2019/Volume XLI, Issue 27, eff. 7/3/2019

Amended New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/13/2022