The COVID-19 pandemic has led to widespread efforts by state agencies across the country to increase the ability of practitioners to provide services using telehealth. Because of the success of the telemental health services provided by behavioral health providers in New York, on July 24, 2020, the New York State Office of Mental Health (OMH) issued OMH Guidance setting forth a streamlined process for OMH licensed and designated providers to permanently add telemental health as an optional or additional service.
This article provides background regarding New York State OMH and executive actions related to the COVID-19 pandemic that have led to this streamlined process, discusses recent and proposed regulatory changes affecting telemental health providers, and provides a brief overview of the OMH Administrative Action Application process for becoming permanently approved to provide telemental health services in New York.
Provision of Telemental Health Services in New York During COVID-19 Emergency
In New York, Executive Order 202.1 and extensions that have followed provide telehealth regulatory flexibility for OMH-licensed, -funded or -designated programs. The details regarding the flexibility afforded during the COVID-19 emergency are set forth in guidance provided by OMH. The guidance provides expanded definitions of telemental health and telemental health practitioner during the COVID-19 emergency, includes billing information for telemental health services, and outlines eligible programs and services able to use telemental health during the duration of the declared emergency. During the COVID-19 emergency, OMH is allowing providers not previously approved to provide telemental health services to submit a self-attestation, effective upon submission, which allows the provider to immediately begin delivering telemental health services for a limited time period, not to exceed the emergency.
Recent Proposed Regulatory Changes Impacting Telemental Health
The ability to provide telemental health services was available prior to the pandemic, and in November 2019, OMH adopted expanded regulations pertaining to the provision of these services. For example, the adopted regulations changed the title of the regulation from “Telepsychiatry” to “Telemental Health,” and expanded the eligible practitioner types to include psychologists, social workers, mental health counselors, marriage and family therapists, creative arts therapists, and psychoanalysts. The regulation also expanded the distant site where telemental health services may be received as well as the originating site for the provision of services. The regulations also now include Assertive Community Treatment (ACT) and Personalized Recovery Oriented Services (PROS) as eligible treatment settings. In order to obtain approval to provide telemental health services, providers were required to submit an Administrative Action via the Mental Health Provider Data Exchange (MHPD), requesting to utilize the Telemental Health practice.
Recently, OMH indicated that because of the positive experience of the provision of telemental health services, it is preparing proposed regulations to include permanent expansions to existing regulations to align with some of the flexibilities afforded during the COVID-19 emergency. This may include permanent expansion of eligible practitioners as well as the permissible location of the practitioner while providing services, removal of requirements related to in-person assessments, and allowing continued use of telephonic delivery of telemental health services (subject to other required approvals to permit reimbursement for telephonic delivery).
Administrative Action Application Process for Provision of Telemental Health Services
Because of the success of telemental health services during the COVID-19 emergency, on July 24, 2020, OMH issued guidance regarding a streamlined process for OMH licensed and designated providers to permanently add telemental health as an optional or additional service. In addition, on August 18, 2020, OMH hosted a webinar to review OMH Guidance regarding the streamlined process and encourage providers to submit applications for permanent approval as soon as possible so there is no disruption in the ability to provide services after the COVID-19 emergency ends.
As outlined in the OMH Guidance, licensed providers need to submit only one Administrative Action per agency that clearly identifies the program sites (including any satellites) seeking approval. Through the streamlined application process, providers will be required to submit an Attestation of Compliance for OMH Approval to Offer Telemental Health Services and include a Policy & Procedure (P&P) document. The P&P document is required to contemplate all of the program types of the agency that are seeking to add a Telemental Health practice. OMH underscored that the P&P should be in line with the current regulations, not the flexibilities afforded during the COVID-19 emergency. Designated providers who do not have access to the Mental Health Provider Data Exchange (MHPD) system and ability to submit an application should contact their OMH Field Office for instructions on how to submit the application.
If the proposed regulatory changes discussed above are adopted, providers will not be required to submit a new application to take advantage of changes, but instead will be permitted to inform their OMH Field Office of any changes they intend to make. The OMH Field Office will advise of any necessary documentation to facilitate the change, including the potential need to submit updated policies related to telemental health.
If you have questions regarding the OMH Administrative Action Application process or need assistance in developing the required policies and procedures for telemental health services, please contact Meghan McNamara at mmcnamara@manatt.com or Danielle Sokolov at dsokolov@manatt.com in Manatt Health’s Albany, New York, office.