Emergency Rule Making

Jurisdiction
New York
Publication
Issue 17
Volume XLIII
Published April 28, 2021
Rule Type
Emergency Rule
Issuing Body
Workers' Compensation Board

Notice Text

EMERGENCY RULE MAKING Allowing Telemedicine in Some Circumstances, Supersede Previous Emergency Adoption I.D. No. WCB-17-21-00013-E Filing No. 416 Filing Date: 2021-04-13 Effective Date: 2021-04-13 PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Amendment of sections 325-1.8, 329-1.3, 329-4.2, 333.2 and 348.2 of Title 12 NYCRR. Statutory authority: Workers' Compensation Law, sections 117 and 142 Finding of necessity for emergency rule: Preservation of public health, public safety and general welfare. Specific reasons underlying the finding of necessity: This amendment is adopted as an emergency measure because the Board wants to avoid health and safety risks that can be avoided through social distancing due to the outbreak of COVID-19, by allowing telemedicine in some circumstances, and to supersede the previous emergency adoption addressing this topic. Subject: Allowing telemedicine in some circumstances, supersede previous emergency adoption. Purpose: To allow telemedicine in some circumstances for social distancing purposes due to outbreak of COVID-19. Text of emergency rule: Section 325-1.8 of Title 12 NYCRR is hereby amended to read as follows: 325-1.8 Emergency medical aid and telemedicine. (a)In the event of a serious accident requiring immediate emergency medical aid, an ambulance or any physician may be called to give first aid treatment. (b)Telemedicine, using two-way audio and visual electronic com- munication, or treatment via telephone, may be used by authorized provid- ers where medically appropriate for social distancing purposes due to the outbreak of COVID-19 during the state of emergency in accordance with the Department of Health COVID-19 Medicaid Guidance and Guidance issued by the Centers for Medicare and Medicaid Services, or irrespective of purely social distancing considerations, in the clinical judgment of the authorized provider, the potential risk of COVID-19 infection to an indi- vidual patient outweighs any real or perceived incremental benefit derived from an in-person versus remote or virtual appointment. The authorized provider shall indicate on their report that such assessment was done us- ing telemedicine by use of modifier 95 and indicating a place of service as 11, or telephonically by indicating place of service as 02. The provider shall also confirm the employee's identity as well as provide basic infor- mation about the services the employee is receiving by telephone or telemedicine. New subdivisions (c) and (d) of section 329-1.3 of Title 12 NYCRR is hereby added to read as follows: (c)When medically appropriate, authorized providers who utilize the Official New York State Workers' Compensation Fee Schedule may, when telemedicine is used in accordance with section 325-1.8 of this Title and any applicable Medical Treatment Guideline, bill using the applicable Evaluation and Management codes (99212-99214) using modifier 95 and indicating 11 as the place of service. Modifiers 1B and 1D are available when services are rendered by telemedicine using two-way audio and vi- sual communication. When services are rendered by telephone only in ac- cordance with section 325-1.8 of this Title, the authorized provider shall indicate 02 as the place of service. Modifiers 1B and 1D are not available when services are rendered by telephone with no visual component. (d)Providers with the following rating codes may bill the following psychotherapy codes in conjunction with Evaluation and Management codes: (i)New patient Evaluation and Management: 99201-99204; (ii)Psychotherapy combination codes and crisis codes: 90832- 90834, 90836-90840, 90853; A new subdivision (d) of section 329-4.2 of Title 12 NYCRR is hereby added to read as follows: (d)When medically appropriate, authorized physical therapists and oc- cupational therapists shall use Common Procedural Technology (CPT) code 99212 using modifier 95 and indicating 11 as the place of service when treatment is rendered by telemedicine using two-way audio and vi- sual communication, and indicating 02 as the place of service when treat- ment is rendered by telephone only. Treatment in accordance with section 325-1.8 of this Title and using these codes shall be limited to one unit per patient per day, up to two treatments per week during the thirty days fol- lowing injury, and up to one treatment per week thereafter. New subdivisions (c) and (d) of section 333.2 of Title 12 NYCRR is hereby added to read as follows: (c)When medically appropriate, authorized providers, including psychologists and licensed clinical social workers, shall use a Common Procedural Technology (CPT) therapy code (90832, 90834, or 90837) for services delivered by telemedicine in accordance with section 325-1.8 of this Title using modifier 95 and indicating 11 as the place of service for therapy by telemedicine using two-way audio and visual communication. Modifiers 1B and 1D are available when services are rendered by telemedicine using two-way audio and visual communication. When ser- vices are rendered by telephone only in accordance with section 325-1.8 of this Title, the authorized provider shall indicate 02 as the place of service. Modifiers 1B and 1D are not available when services are rendered by telephone with no visual component. Group therapy: 90853. Group therapy is limited to a maximum of 20 participants and does not require that every participant in the group therapy session be a workers' compensation claimant. A new subdivision (c) of section 348.2 of Title 12 NYCRR is hereby amended to read as follows: (c)When medically appropriate, authorized chiropractors shall use Common Procedural Technology (CPT) code 99212 using modifier 95 and indicating 11 as the place of service when treatment is rendered by telemedicine using two-way audio and visual communication, and indicat- ing 02 as the place of service when treatment is rendered by telephone only. Treatment in accordance with section 325-1.8 of this Title and using these codes shall be limited to one unit per patient per day, up to two treat- ments per week during the thirty days following injury, and up to one treat- ment per week thereafter. This notice is intended to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires July 11, 2021. Text of rule and any required statements and analyses may be obtained from: Heather MacMaster, Workers' Compensation Board, Office of General Counsel, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: regulations@wcb.ny.gov Regulatory Impact Statement 1.Statutory authority: WCL § 117(1) authorizes the Chair of the Work- ers' Compensation Board (Board) to adopt reasonable rules consistent with, and supplemental to, the provisions of the WCL. 2.Legislative objectives: The emergency adoption allows telemedicine visits in some circumstances due to the outbreak of COVID-19. 3.Needs and benefits: For social distancing purposes to avoid further- ing the outbreak of COVID-19, the emergency adoption allows telemedi- cine visits in some circumstances to avoid in person visits to authorized providers when medically appropriate, consistent with guidance issued by the Center for Medicaid and Medicare Services. This regulation will permit physicians, nurse practitioners, physician assistants, psychologists, licensed clinical social workers, chiropractors, physical therapists and oc- cupational therapists to treat using telehealth due to COVID-19. 4.Costs: The emergency adoption will have no impact on costs. 5.Local government mandates: The proposed amendments do not impose any program, service, duty, or responsibility upon any county, city, town, village, school district, fire district, or other special district. 6.Paperwork: The emergency adoption requires authorized providers to indicate in their report that the services rendered were through telemedicine due to the outbreak of COVID-19. 7.Duplication: The emergency adoption does not duplicate other regulatory initiatives. 8.Alternatives: An alternative would be to not file an emergency adop- tion addressing telemedicine. However, this poses a health risk to both the authorized providers and the claimants being treated, and social distanc- ing, where medically appropriate, is a better alternative due to the outbreak of COVID-19. 9.Federal standards. There are no applicable Federal Standards. 10.Compliance schedule: The emergency adoption takes effect im- mediately upon filing but does not require telemedicine - it offers it as a tool to assist with social distancing in some circumstances. Any provider rendering services using telemedicine must comply with the emergency adoption, including the reporting requirements. Regulatory Flexibility Analysis A Regulatory Flexibility Analysis is not required because the emergency adoption will not have any adverse economic impact or impose any new reporting, recordkeeping or other compliance requirements on small busi- nesses or local governments. The emergency adoption provides for telemedicine visits in some circumstances due to the outbreak of COVID- 19. Rural Area Flexibility Analysis A Rural Area Flexibility Analysis is not required because the emergency adoption will not have any impact rural areas. The emergency adoption allows telemedicine visits in some circumstances due to the outbreak of COVID-19. Job Impact Statement A Job Impact Statement is not required because the emergency adoption will not have any impact on jobs or employment opportunities. The emergency adoption allows telemedicine visits in some circumstances due to the outbreak of COVID-19.
HEARINGS SCHEDULED
Agency I.D. No. Subject Matter Location-Date-Time
Liquor Authority, State
LQR-12-21-00005-P . . . . . . . . . . . . . . . . . . . . . . . . Minimum Curriculum Requirements for 163 W. 125th St. New York, NY-June 9,
ATAP Schools 2021, 10:00 a.m.
Long Island Power Authority
LPA-14-21-00010-P . . . . . . . . . . . . . . . . . . . . . . . . To Increase Participation in the NYSERDA Virtual (link will be on LIPA website)-June 7,
GJGNY On-Bill Loan Installment Program 2021, 10:00 a.m. and 2:00 p.m.
State, Department of
DOS-12-21-00010-P . . . . . . . . . . . . . . . . . . . . . . . . New York State Uniform Fire Prevention and 99 Washington Ave., Room 505, Albany NY-
Building Code (Uniform Code) May 27, 2021, 10:00 a.m.
Due to the ongoing pandemic, the public hear-
ing scheduled to accept public comments may
be held virtually only. Instructions for atten-
dance online or by phone will be provided on
the Department of State's Division of Building
Standards and Codes' website at https://
www.dos.ny.gov/DCEA/ at least fourteen (14) days prior to the public hearing.