The Evolving Telehealth Landscape for New York Providers

The COVID-19 Public Health Emergency (PHE) required State and Federal agencies to offer unprecedented telehealth flexibilities to ensure continued access to  care. Now, the widespread  success of telehealth in the face of the pandemic has led New York and the Center for Medicare & Medicaid Services (CMS) to consider regulatory changes to make many of these flexibilities permanent.

The New York State Office of Mental Health (OMH) recently announced a new streamlined approval process to add telemental health services to a licensed provider’s operating certificate. Thereafter, OMH announced during a webinar they are updating their regulations to make many telemental health flexibilities permanent. Likewise, CMS has  stated it is reviewing existing telehealth flexibilities to determine which ones should become permanent.

This Hinman Staub Healthcare Alert takes a look at the rapidly evolving telehealth landscape for New York’s providers, including the new OMH telemental health streamlined approval process and expected regulatory changes, other actions that may be taken by the Department of Health (DOH) and CMS, and outstanding questions that could impact continued use of telehealth.

Existing Status of Telehealth Flexibility

Current telehealth flexibilities for New York providers are tied to the emergency declarations issued by President Trump and Governor Cuomo, and will expire along with these  declarations.

New York

On March 7, 2020, Governor Cuomo issued Executive Order 202 (“EO 202”) declaring a Disaster Emergency in the State of New York. EO 202 waived various regulations to permit widespread telehealth use among providers licensed by State agencies, including DOH, OMH, and the Office of Addiction Services and Supports (OASAS). EO 202 serves as the legal authority for all existing Medicaid telehealth guidance issued by DOH, OMH, and OASAS, and for guidance issued to licensed insurers by the New York Department of Finance Services (DFS) through Circular Letter #6 and emergency regulations. This DFS guidance clarifies that telephonic or video modalities are covered telehealth services under the insurance law for the duration of the Disaster Emergency declared by EO 202.

Thus, under EO 202, New York providers have been able to offer telehealth services through telephonic-only communication, without restrictions on where the provider or patient can be located. State Medicaid policy has, to this point, required telehealth services to be reimbursed the same as an in-person service.  DFS did not impose similar reimbursement requirements on licensed commercial insurers.

CMS

Following the President’s Declaration of a National State of Emergency on March 13, CMS announced  on March 17 it was expanding the Medicare telehealth benefit and adding additional flexibilities. This flexibility took a major step forward when on April 30,  CMS  expanded the list of telehealth eligible services and providers, and for the first time,  authorized reimbursement under Medicare FFS for telemedicine provided through audio-only telephonic communication.

Evolving Landscape

New York

The 2020-21 Enacted State Budget and other recently enacted laws authorize State agencies to make permanent many existing telehealth flexibilities, including continued use of audio-only telephonic communication. OMH is the first State agency to act on the new authority through the release of the streamlined telemental health approval process. The new process eliminates much of the up-front burden on establishing telemental health services on a provider’s operating certificate by requiring the submission of a single Administrative Action (AA) for each agency. As noted, OMH is also working on revised regulations to Part 596 to make certain telemental health flexibilities permanent. According to OMH, this is expected to include:

• Removing the requirement that provider and patient be located in New York;
• Removing requirement that a licensed provider conduct an in-person assessment prior to beginning telemental health services;
• Expanding telemental health within ACT & PROs settings and including involuntary admissions; and,
• Adding telephonic-only audio communication as a permissible modality, subject to additional approvals. OMH noted approval for telephonic-only could be linked to reimbursement for the service.

One current flexibility that is unlikely to remain is with respect to HIPAA and patient privacy. In early March, the HHS Office for Civil Rights (OCR) issued a critical  Notification of Enforcement Discretion stating the agency did not intend to “impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” This allowed providers to render care without complying with HIPAA requirements. Going forward, it is likely providers will be expected to comply with minimum State and Federal requirements for transmission linkages (HIPAA Security Rules) and patient confidentiality under various New York State and Federal laws, including 45 CFR Parts 160 and 164 (HIPAA Privacy Rules).

CMS

Like New York, CMS has confirmed “telehealth is here to stay” after its unprecedented use during the pandemic. According to CMS Administrator Seema Verma, the number of beneficiaries in Medicare FFS that received telehealth went from 13,000 per week pre-pandemic, to 1.7 million per week by the end of April. Over 9 million beneficiaries received a telehealth service thru mid-June, with nearly 1/3 (3 million) receiving services via traditional telephone.

CMS is now reviewing which flexibilities should be made permanent, including which services are appropriate for telehealth, what the payment rates should be, and what  the program integrity implications are.

Takeaways

It’s clear the regulatory landscape surrounding telehealth services will be forever changed due to the COVID-19 pandemic. Several flexibilities seem destined to become permanent fixtures, including use of audio-only telephonic service delivery. For New York Medicaid providers and providers in rural settings, these flexibilities may help overcome  longstanding patient access issues.

While both New York and CMS seem intent on making many  flexibilities permanent, providers should prepare to comply with HIPAA and State privacy laws that are unlikely to last beyond the emergency periods.

Ultimately, whether telehealth continues to flourish post-pandemic largely depends on how payers reimburse for the services. Clearly, any financial disincentive for providers to use telehealth will diminish whether it is viewed as a sustainable alternative to in-person care.

The attorneys at Hinman Straub are well versed in telehealth coverage laws, HIPAA and State laws and regulatory requirements, and State agency policies applicable to New York State providers and insurers.  We are available to answer any questions you may have.

If you have any questions, please contact one of our attorneys.

This Alert is the express copyright of Hinman Straub P.C. and may not be republished without permission.  The statements contained herein are for informational purposes only and do not constitute legal advice.