NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING NO HEARING(S) SCHEDULEDTelehealth ExpansionI.D. No. OMH-48-21-00003-ERPFiling No. 312Filing Date: 2022-04-25Effective Date: 2022-04-25PURSUANT 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 31.04Finding of necessity for emergency rule: Preservation of public health and general welfare.Specific reasons underlying the finding of necessity: The immediate adoption of these amendments is necessary for the preservation of the health, safety, and welfare of individuals receiving services.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.Subject: Telehealth Expansion.Purpose: To establish regulations regarding the expansion of telehealth.Substance of emergency/revised rule (Full text is posted at the following State website: https://omh.ny.gov/omhweb/policy_and_regulations/): The Office of Mental Health (Office) proposes updating the regulations pertaining to telehealth, as set forth in Part 596 of title 14 of the NYCRR to conform with recent statutory changes provided by Chapter 124 of the Laws of 2020. In addition to technical amendments, the proposed amendments make the following changes:â€¢ Changed the term Telemental Health to Telehealth to align across state agencies.â€¢ Amended the definitions of telehealth, telehealth technologies, and originating site.â€¢ Allows for the use of audio-only.â€¢ 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.â€¢ Expanded the definition of telehealth practitioner: (i) a prescribing professional eligible to prescribe medications pursuant to federal regula- tions; 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.â€¢ Removes PROS and ACT specific language.â€¢ 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.â€¢ Allows the ability for all telehealth practitioners to deliver services from outside NYS.â€¢ Clarifies language around exclusion for purposes of seeking a court order for treatment over objection (vs old language of ordering medication over objection).â€¢ Provides that Telehealth audio-visual 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, audio-visual 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.â€¢ Removes the requirement of an in-person initial assessment.â€¢ 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.This notice is intended to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on December 1, 2021, I.D. No. OMH- 48-21-00003-EP. The emergency rule will expire June 23, 2022.Emergency rule compared with proposed rule: Substantial revisions were made in section 596.6(12) and (13).Text of rule and any required statements and analyses may be obtained from: Sara Paupini, Esq., Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, (518) 474-1331, email: email@example.comData, views or arguments may be submitted to: Same as above.Public comment will be received until: 45 days after publication of this notice.Revised 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 amend- ments 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 servicesSmall 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) (SAPA Â§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 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 ?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 existence 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.Assessment of Public CommentThe agency received no public comment.