Telemedicine/Telehealth

In order to provide effective telehealth services (including New York’s distinct categories of “telemedicine,” “telemental health” and various forms of “telepractice”), health care providers must have the ability to provide quality care and also be able to implement additional protocols related to cybersecurity, privacy and reimbursement. There are also unique challenges that can arise in areas of credentialing, licensure/scope of practice and patient consent. 

Who We Serve

Our health care practice group works closely with clients who provide medical and/or behavioral health care services through electronic communications. We have assisted many clients (including hospitals, medical groups, psychological practices and OPWDD providers) in establishing and expanding telehealth services and advise them on the ever-changing state and federal laws that govern issues of security/privacy, insurance coverage and reimbursement under Medicaid and Medicare.

We have developed the following list of FAQs to help give you an overview of some the major questions we deal with on a regular basis. Please visit our “Resources” and our “Articles” sections/links to learn more.

* Please note that, during the COVID-19 pandemic, state and federal governments have relaxed or otherwise modified the applicable regulations or guidance. Updated information and relevant resources can be found here: COVID-19 Telehealth Updates.

Resources

Our experienced team of attorneys works with clients on a number of regulatory and transactional issues that arise in the context of telehealth. We have developed the following list of FAQs to give you an overview of some the major questions we deal with on a regular basis. You will also find links to resources that you may find helpful. 

Q: What is telehealth?

A: Telehealth is, at its core, the ability to provide health care services remotely. However, only certain kinds of telehealth are reimbursable. For instance, the New York State Medicaid program limits telehealth coverage to telemedicine (meaning synchronous, two-way electronic audio visual communications to deliver clinical health care services), store and forward technology (including certain digital images) and remote patient monitoring devices/systems.

Q: How are telehealth services reimbursed? What about insurance for patients?

A: Medicaid and Medicare have specific requirements for the types of services that are reimbursable and the rates for such reimbursement. These rates are subject to change each year. Additionally, New York State requires commercial insurers and the Medicaid program to provide reimbursement for services delivered via telehealth if those services would have been covered if delivered in person. 

Q: How do I find the appropriate software or equipment? 

A: Telehealth can be provided through a number of modalities, ranging from audio-video communications, remote monitoring and store-and-forward. The exact equipment and software will likely depend on the modality and the nature of the services. For example, in some settings, NYS agencies encourage or require the use of special cameras and specific internet security settings. Many providers enter into agreements with third-party vendors who license the software to the providers. These agreements should address not only the services and use of software during the contract, but also key items including, but not limited to, the location of and ability to access data, and the terms under which security breaches will be addressed to comply with HIPAA and New York’s SHIELD Act. Given the unique complexities that can arise at these intersections of health care and technology, it is recommended that providers engage an experienced telehealth attorney to review these contracts. 

Q: I provide health care services through a private practice. How is the practice of telehealth regulated? Can I provide services through telehealth?

A: Telehealth is regulated in large part by each state. Among other things, this means that professionals should be familiar with the requirements of each state in which they are providing care, which is based upon the location of the patient. Most states require that the professional be licensed to practice in the state in which the patient resides before engaging in telehealth services. 

In New York State, many of the professions regulated/overseen by the New York State Education Department (NYSED) are able to engage in telehealth services. NYSED has provided basic guidance to help you understand and plan for providing telehealth services. For those providing services in certain settings that require licensure/approval of state agencies, there may be additional requirements that apply; for example, services provided at/through a site licensed by OMH, OASAS, or OPWDD should consult that agency’s guidance for additional details. (see below for links to applicable guidance). 

Q: How does telehealth work for behavioral health care providers?

A: Behavioral health care providers – including private practitioners as well as those who provide services through OPWDD, OMH, OASAS– are able to use telehealth to increase access to care by allowing individuals to receive services remotely, often at the patients place of residence. Depending on the specific services being offered and the agency regulating those services, there may be specific guidance that applies. For additional information, please click the dropdown box/link below.

• OMH – Telemental Health

The Office of Mental Health utilizes its own form of telehealth, called telemental health. OMH regulations govern the provision of telemental health services by OMH programs licensed or designated pursuant to Article 31 of the Mental Hygiene Law. Providers wishing to utilize telemental health services by/through OMH programs licensed or designated pursuant to MHL Article 31 must receive approval (which requires filing an attestation and other materials to OMH). Services are required to be delivered from a secure site/location which ensures the minimum standards for privacy for recipient-clinician interaction are met; psychiatrists and nurse practitioners in psychiatry may deliver services from a site located within the United States, including from a space in a place of residence approved by the Office of Mental Health and mental health practitioners may deliver services from a site located within the State of New York, including from a space in a place of residence approved by the Office of Mental Health. 

For more guidance, see OMH’s 2019 guidance. 

• OPWDD - Telehealth

The Office for People with Developmental Disabilities allows clinic treatment facilities to serve individuals through providing access to clinical services through telehealth. The use of telehealth was added to OPWDD regulations in 2018 in order to increase access to care by allowing individuals to receive services remotely, rather than in the home or another costlier and/or more restrictive settings. The person receiving services may be at his/her residence while the provider is at an OPWDD site (or a certified satellite site). Currently, independent practitioner services for individuals with developmental disabilities (IPSIDD services) are prohibited from being delivered via telehealth. 

• OASAS – Telepractice

The Office of Addiction Services and Supports uses the term “telepractice” to refer the use of two-way real-time interactive telecommunication system for the purpose of providing certain addiction services at a distance. In order to provide telepractice, a program must have received an operating certificate “designation” from OASAS, and providers/programs must also receive approval to provide such services. Services may be provided via telepractice by a practitioner from a site distant from the location of the patient, provided both practitioner and patient are located in sites approved by the Office pursuant to a plan submitted by a certified program in application for a telepractice designation. 

General guidance is available here.