NOTICE OF ADOPTIONTelehealth ExpansionI.D. No. OMH-48-21-00003-AFiling No. 716Filing Date: 2022-09-12Effective Date: 1 day after filingPURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:Action taken: Amendment of Part 596 of Title 14 NYCRR.Statutory authority: Mental Hygiene Law, sections 7.07, 7.09 and 31.04Subject: Telehealth Expansion.Purpose: To establish regulations regarding the expansion of telehealth.Text or summary was published in the December 1, 2021 issue of the Register, I.D. No. OMH-48-21-00003-EP.Final rule as compared with last published rule: No changes.Revised rule making(s) were previously published in the State Register on May 11, 2022.Text of rule and any required statements and analyses may be obtained from: Sara Paupini, Esq., Office of Mental Health, 44 Holland Ave., Albany, NY 12229, (518) 474-1331, email: email@example.comRevised Regulatory Impact Statement1.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 imple- ment matters under their 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 Sec- tion 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 Â§2999-cc (as amended by Chapter 124 of the Laws of 2020) which may eventually lead to more ?exibility 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 al- low practitioners to be physically located outside the State of New York while delivering services, and provide that practitioners can deliver ser- vices remotely without first conducting an in-person evaluation. Addition- ally, in the revised proposed rule, 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 audio-visual telemental health only.Such amendments are necessary to allow providers to maintain continu- ity 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 vulner- able 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 ?exibility 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 ?exibility be terminated. The proposed amendment intends to increase ?exibility 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 45 day public comment period required by the State Administrative Procedure Act.Revised Regulatory Flexibility AnalysisEffect 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 ?exibilities 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 ?exibilities 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.Revised Rural Area Flexibility AnalysisTypes 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 Â§ 481(7) (SAPAÂ§102(10)). Per Exec. Law Â§ 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 regula- tion 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 autho- rized 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 ?exibilities 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 servicesRural Area Participation:The Office will notify covered entities located in rural areas of the exis- tence of these regulations and the opportunity to submit comments or questions to the Office.Revised Job Impact StatementThe 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.Initial Review of RuleAs 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.Assessment of Public CommentComment: A commentor supports the expanded definitions of "originat- ing site," "telehealth practitioners" and "telehealth services" and recommends that OMH include text messaging in the definition of telehealth services. Text messaging can provide opportunities for patients in environments where audio conversations would prohibit them from otherwise receiving care.Response: The Office has considered the recommendation and declines to make the amendment. The Office recognize that texting is a positive tool for outreach, building connections and engagement, but is not an appropriate clinical service delivery tool.Comment: A Commentor supports the requirement to only submit policies and procedures and an attestation instead of a written plan and encourages OMH to continue efforts to streamline the designation process, including review of policies and procedures.Response: The Office continues to review regulations in an effort to streamline processes.Comment: A Commentor supports the ?exibility to use telehealth services to satisfy specific statutory examination, evaluation or assessment requirements pursuant to Section 9.27 and 9.39 of Mental Hygiene Law.Response: The Office agrees with the comment.Comment: A Commentor supports the removal of the requirement for patients to receive an initial in-person visit. Patients who experience transportation and/or mobility challenges have especially benefited from the ability to receive behavioral healthcare through telehealth.Response: The Office agrees with the comment and such comment does not require any amendments to the proposed regulation.Comment: A Commentor recommends OMH to not include requirements for written consent in the guidance as the process creates unnecessary administrative delays for access to care.Response: The Office appreciates the comment and will address consent ?exibilities in guidance.Comment: A Commentor notes that inadequate reimbursement is a longstanding barrier to the expansion of telehealth in New York and supports OMH for including telehealth payment parity.Response: The Office appreciates the comment and such comment does not require any amendments to the proposed regulation.