NOTICE OF ADOPTIONDesignated Services: Telehealth and LBGTQ EndorsementI.D. No. ASA-47-21-00001-AFiling No. 55Filing Date: 2022-01-26Effective Date: 2022-02-16PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:Action taken: Amendment of Part 830 of Title 14 NYCRR.Statutory authority: Mental Hygiene Law, sections 1.03(6), 19.07(c), (e), 19.09(b), 19.21(d), 32.01, 32.02, 32.05(b), 32.07(a), 32.09(b); Education Law, art. 160; Public Health Law, section 3351(5), art. 29G; Executive Law, art. 15; 21 USC 289Subject: Designated Services: Telehealth and LBGTQ endorsement.Purpose: Revised telehealth ?exibilities and minimum requirements for an office designation (LGBTQ endorsement).Text or summary was published in the November 24, 2021 issue of the Register, I.D. No. ASA-47-21-00001-EP.Final rule as compared with last published rule: No changes.Text of rule and any required statements and analyses may be obtained from: Kelly Grace, OASAS, 1450 Western Ave., Albany, NY 12203, (518) 366-7958, email: Kelly.Grace@oasas.ny.govRevised Regulatory Impact Statement1. Statutory Authority:(a)Section 1.03(6) of the Mental Hygiene Law defines "facility" as any place in which services for the mentally disabled are provided.(b)Section 19.07(c) of the Mental Hygiene Law authorizes the com- missioner to adopt standards ensuring the personal and civil rights of persons seeking and receiving addiction services, care, treatment and re- habilitation are adequately protected.(c)Section 19.07(e) of the Mental Hygiene Law authorizes the com- missioner to adopt standards including necessary rules and regulations pertaining to chemical dependence services.(d)Section 19.09(b) of the Mental Hygiene Law authorizes the com- missioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.(e)Section 19.21(d) of the MHL requires the Office to establish reason- able performance standards for providers of services certified by the Office.(f)Section 32.01 of the Mental Hygiene Law authorizes the commis- sioner to adopt any regulation reasonably necessary to implement and ef- fectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.(g)Section 32.05(b) of the MHL provides that a controlled substance designated by the commissioner of the New York State Department of Health (DOH) as appropriate for such use may be used by a physician to treat a chemically dependent individual pursuant to section 32.09(b) of the MHL.(h)Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.(i)Section 32.09(b) of the MHL provides that the commissioner may, once a controlled substance is approved by the commissioner of DOH as appropriate for such use, authorize the use of such controlled substance in treating a chemically dependent individual.(j)Article 160 of the Education Law provides for the licensure or certi- fication of acupuncturists and limited practice of unlicensed persons in treatment of substance use disorder.(k)Article 29-G of the Public Health Law relates to reimbursement for health care services delivered via "telehealth."(l)Section 3351 of the Public Health Law authorizes the prescribing or dispensing of controlled substances for the purposes of substance use dis- order treatment.(m)Section 829 of Title 21 of the United States Code governs the law concerning internet prescribing of controlled substances.(n)Article 15 of the Executive Law enacts the Human Rights Law prohibiting discrimination against protected classes of New Yorkers including on the basis of sexual orientation and gender identity or expression.2. Legislative Objectives: The legislature has authorized OASAS to es- tablish standards and regulations governing the provision of addiction treatment services and the certification of providers. These amendments continue regulatory ?exibility and alignment with the Office of Mental Health and Department of Health. Furthermore, regulatory language is modified to allow for prompt provision of services based on future ?ex- ibility in telehealth service delivery. In addition, a program endorsement is added to develop a distinction for OASAS certified programs meeting ad- ditional criteria identified on the website for provision of LGBTQ affirm- ing care. This rulemaking proposal was approved by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments on June 24, 2020. As a result of the first public comment period, significant changes were made to the regulation. The revised regulation was again approved by the Behavioral Health Services Advisory council in June 2021, and then published in the State register for another 45-day public comment period. No additional changes were made as a result of this second public comment period.3. Needs and Benefits: By conforming agency regulations for the provi- sion of services via telehealth, it will be easier for providers of services, especially integrated providers and providers with multiple licenses, to implement telehealth across their service system by having uniform rulesand regulations. Furthermore, the amendments allow for additional ?ex- ibility in a post-COVID telehealth environment.By creating an LGBTQ program endorsement, OASAS is distinguishing certified programs that have completed additional criteria beyond that which is already required by regulation and is identified on the website for the provision of culturally competent and affirming care.4.Costs: No additional administrative costs to the regulated entities, State, local governments, or the agency are anticipated.5.Paperwork: There is no additional paperwork beyond what is already required for telepractice designation. The program endorsement is optional for providers and therefore any additional paper work required will not create additional burdens.6.Local Government Mandates: There are no new local government mandates.7.Duplications: This proposed rule does not duplicate, overlap, or con?ict with any State or federal statute or rule.8.Alternatives: Alternatives include not preparing the OASAS system to respond to telehealth changes in a post-COVID healthcare environ- ment, which could have the effect of limiting access to addiction treatment services and/or missed opportunities for generating insurance reimburse- ment, Additionally, not creating a distinction for OASAS certified programs that meet the additional requirements for the provision of LGBTQ affirming care could have the detrimental impact of limiting access. LGBTQ identified individuals are less likely to seek healthcare services because of the fear of discrimination in these sensitive settings. Identifying competent and affirming programs increases the likelihood that someone of LGBTQ experience will seek care for their addiction.9.Federal Standards: This regulation does not con?ict with federal standards.10.Compliance Schedule: This rulemaking will be effective upon pub- lication of a Notice of Adoption in the State Register.Revised Regulatory Flexibility AnalysisOASAS has determined that the rule will not impose any adverse eco- nomic impact or reporting, recordkeeping or other compliance require- ments on small businesses or local governments because services delivered via telehealth are already included in the regulation and services may al- ready be authorized by submitting the designation to the Office. Addition- ally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are optional for providers that are already certified by the Office.Revised Rural Area Flexibility AnalysisOASAS has determined that the revised rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas because services delivered via telehealth are already included in the regulation and services may already be authorized by submitting the designation to the Office. Additionally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are optional for providers that are already certified by the Office.Revised Job Impact StatementOASAS is not submitting a Job Impact Statement for this rulemaking. OASAS does not anticipate a substantial adverse impact on jobs and employment opportunities because services delivered via telehealth are already included in the regulation and services may already be authorized by submitting the designation to the Office. Additionally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are optional for providers that are already certified by the Office.Initial Review of RuleAs a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2027, which is no later than the 5th year after the year in which this rule is being adopted.Assessment of Public CommentCOMMENT: Several commenters expressed support for the regulatory changes, including the addition of the LGBTQ Endorsement.RESPONSE: No response necessary as these are comments of support.COMMENT: Providers indicated concern regarding the social work exemption, limited permit fees, and supervision rules, non-permit holding staff, and resulting barriers to service. The social work exemption is important in continuing care for patients who want to receive services via telehealth and must be continued in order to prevent undue burden on staff, specifically including the 70$ fee imposed on MSW's to receive a limited permit in order to continue to practice, and limited LCSW staff to provide adequate supervision as is required for permit holders.RESPONSE: Scope of practice and licensure for professional staff and fees, including the social work exemption are imposed by the New York State Education Department, and therefore any further changes related to these rules would have to result from regulatory and statutory changesmade by SED. OASAS will continue to express concerns raised by providers related to the social work exemption.COMMENT: Commenter asked that Part 830 include unlicensed and non-permit holding MSWs to continue to be able to practice telehealth per the COVID ?exibilities. A related comment also asked that Part 830 be inclusive of all unlicensed and non-permit holding staff who are currently able to provide telehealth services under the ?exible guidance and allow opportunities for telehealth training interventions with QHP supervisors.RESPONSE: Providers must be included in Article 29G of the Public Health Law to provide reimbursable services via telehealth.COMMENT: Comment expressed concern that if ?exibilities are not made permanent, patients will experience barriers to services including(1)a potential requirement to see their therapist onsite with no telehealth option and (2) potential need to transfer to a telehealth-allowed therapist to maintain their telehealth option.RESPONSE: OASAS is making every attempt at maintaining ?exibility to the greatest extent possible.COMMENT: One commenter offered strong support for OASAS' ef- forts to maintain access to telehealth services post pandemic. The com- menter also specifically supports the expanded definitions of "distant site" and "originating site" as it removes unnecessary barriers.RESPONSE: No response necessary as the comment is one of support.COMMENT: One commenter raised concern that the definition of "practitioner" as a "prescribing professional eligible to prescribe buprenor- phine pursuant to federal regulations" is too narrow because there are other medications that providers can use for medication-assisted treatment. Also concerned that by requiring the prescribing professional to have a waiver to prescribe buprenorphine that OASAS would limit the number of available practitioners for telehealth services.RESPONSE: Federal rules require any practitioner prescribing bu- prenorphine to have a waiver.COMMENT: One commenter supports the expansion of telehealth but recommends that OASAS not prohibit use of text messages as text mes- sages can help address disparities in access to telehealth services.RESPONSE: While Federal rules prohibit reimbursement for texting as a means of telehealth, it is an acceptable form of communicating with patients (i.e., scheduling an appointment).COMMENT: One commenter supports the removal of a separate writ- ten application, however urges OASAS and the field offices to expedite the process as there is a concern that the process for reviewing the policies and procedures could still result in delays for providers.RESPONSE: OASAS will continue to mandate submission of an ap- plication and a review of an agency's policies and procedures prior to ap- proval to delivery of services. This is consistent with the process for other state agencies and ensures that services are provided in a manner that is safe and accessible for patients. Providers are encouraged to reach out to the Legal Department at Legal@oasas.ny.gov if they encounter delays.COMMENT: One commenter supports the change allowing telehealth to be offered to patients "in a program certified by the office" instead of "only in one of two connected sites" because removing site of care restric- tions there is an increased access to care. Commenter also supports re- moval of in-person requirement to conduct an evaluation regarding the ap- propriateness of telehealth and requirement to receive written consent to record telehealth sessions, as they also reduce barriers.RESPONSE: No response necessary as the comment is one of support.COMMENT: One commenter asked for clarification regarding the practice of telehealth by unlicensed providers.RESPONSE: Additional clarification will be provided in updated guid- ance from the office and the Department of Health.