S T A T E O F N E W Y O R K
________________________________________________________________________
7173
I N S E N A T E
(PREFILED)
January 3, 2018
___________
Introduced by Sens. SERINO, ORTT -- read twice and ordered printed, and
when printed to be committed to the Committee on Mental Health and
Developmental Disabilities
AN ACT to amend the mental hygiene law, in relation to telepsychiatry
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (b) of section 7.41 of the mental hygiene law
is amended by adding a new paragraph 10 to read as follows:
(10) TELEPSYCHIATRY. PROGRAMS, AS DEFINED UNDER ARTICLE EIGHTY-FIVE OF
THIS CHAPTER, WHICH OFFER HOMEBOUND OR SOCIALLY ISOLATED GERIATRIC
PATIENTS WITH THE USE OF TWO-WAY REAL-TIME INTERACTIVE AUDIO AND VIDEO
EQUIPMENT ACCESS TO PROVIDE AND SUPPORT MENTAL HEALTH SERVICES AT A
DISTANCE.
§ 2. The mental hygiene law is amended by adding a new article 85 to
read as follows:
ARTICLE 85
TELEPSYCHIATRY
SECTION 85.01 DEFINITIONS.
85.03 APPROVAL TO UTILIZE TELEPSYCHIATRY SERVICES.
85.05 REQUIREMENTS FOR TELEPSYCHIATRY SERVICES.
85.07 REIMBURSEMENT FOR TELEPSYCHIATRY SERVICES.
85.09 CONTRACTS FOR THE PROVISION OF TELEPSYCHIATRY SERVICES.
§ 85.01 DEFINITIONS.
FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
(A) TELEPSYCHIATRY MEANS THE USE OF TWO-WAY REAL-TIME INTERACTIVE
AUDIO AND VIDEO EQUIPMENT TO PROVIDE AND SUPPORT MENTAL HEALTH SERVICES
AT A DISTANCE. SUCH SERVICES DO NOT INCLUDE A TELEPHONE CONVERSATION,
ELECTRONIC MAIL MESSAGE, OR FACSIMILE TRANSMISSION BETWEEN A PROVIDER
AND A PATIENT OR A CONSULTATION BETWEEN TWO PHYSICIANS OR NURSE PRACTI-
TIONERS, OR OTHER STAFF, ALTHOUGH THESE ACTIVITIES MAY SUPPORT TELEPSY-
CHIATRY SERVICES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13687-01-7
S. 7173 2
(B) DISTANT OR HUB SITE MEANS THE DISTANT LOCATION AT WHICH THE PRAC-
TITIONER RENDERING THE TELEPSYCHIATRY SERVICE IS LOCATED.
(C) ENCOUNTER MEANS A TELEPSYCHIATRY EVENT INVOLVING PATIENT CONTACT,
WHEREBY THE CARE OF THE PATIENT IS THE DIRECT RESPONSIBILITY OF BOTH THE
ORIGINATING, OR SPOKE SITE, PROVIDER AND THE DISTANT, OR HUB SITE,
PROVIDER.
(D) ENCRYPTION MEANS A SYSTEM OF ENCODING DATA ON A WEB PAGE OR EMAIL
WHERE THE INFORMATION CAN ONLY BE RETRIEVED AND DECODED BY THE PERSON OR
COMPUTER SYSTEM AUTHORIZED TO ACCESS IT.
(E) ORIGINATING OR SPOKE SITE MEANS THE SITE WHERE THE PATIENT IS
PHYSICALLY LOCATED AT THE TIME MENTAL HEALTH SERVICES ARE DELIVERED TO
HER OR HIM BY MEANS OF TELEPSYCHIATRY.
(F) NURSE PRACTITIONER IN PSYCHIATRY MEANS A PERSON CURRENTLY CERTI-
FIED AS A NURSE PRACTITIONER WITH AN APPROVED SPECIALTY AREA OF PSYCHIA-
TRY BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A PERMIT FROM THE
DEPARTMENT OF EDUCATION.
(G) PHYSICIAN MEANS A PHYSICIAN CURRENTLY LICENSED TO PRACTICE MEDI-
CINE IN NEW YORK WHO (I) IS A DIPLOMAT OF THE AMERICAN BOARD OF PSYCHIA-
TRY AND NEUROLOGY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD, OR (II)
IS CERTIFIED BY THE AMERICAN OSTEOPATHIC BOARD OF NEUROLOGY AND PSYCHIA-
TRY OR IS ELIGIBLE TO BE CERTIFIED BY THAT BOARD.
(H) PRACTITIONER MEANS A PHYSICIAN OR NURSE PRACTITIONER IN PSYCHIATRY
WHO IS PROVIDING TELEPSYCHIATRY SERVICES FROM A DISTANT OR HUB SITE IN
ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
(I) PROVIDER OF SERVICES MEANS A PROVIDER OF MENTAL HEALTH SERVICES
LICENSED PURSUANT TO ARTICLE THIRTY-ONE OF THIS CHAPTER.
(J) QUALIFIED MENTAL HEALTH PROFESSIONAL MEANS A PRACTITIONER POSSESS-
ING A LICENSE OR A PERMIT FROM THE DEPARTMENT OF EDUCATION WHO IS QUALI-
FIED BY CREDENTIALS, TRAINING, AND EXPERIENCE TO PROVIDE DIRECT SERVICES
RELATED TO THE TREATMENT OF MENTAL ILLNESS AND SHALL INCLUDE PHYSICIANS
AND NURSE PRACTITIONERS IN PSYCHIATRY, AS DEFINED IN SUBDIVISIONS (F)
AND (G) OF THIS SECTION, AS WELL AS THE FOLLOWING:
(1) CREATIVE ARTS THERAPIST: A PERSON CURRENTLY LICENSED AS A CREATIVE
ARTS THERAPIST BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A CREA-
TIVE ARTS THERAPIST PERMIT FROM THE DEPARTMENT OF EDUCATION.
(2) LICENSED PRACTICAL NURSE: A PERSON CURRENTLY LICENSED AS A
LICENSED PRACTICAL NURSE BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES
A LICENSED PRACTICAL NURSE PERMIT FROM THE DEPARTMENT OF EDUCATION.
(3) LICENSED PSYCHOANALYST: A PERSON CURRENTLY LICENSED AS A PSYCHO-
ANALYST BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A PERMIT FROM
THE DEPARTMENT OF EDUCATION.
(4) LICENSED PSYCHOLOGIST: A PERSON CURRENTLY LICENSED AS A PSYCHOL-
OGIST BY THE DEPARTMENT OF EDUCATION, OR WHO POSSESSES A PERMIT FROM THE
DEPARTMENT OF EDUCATION AND WHO POSSESSES A DOCTORAL DEGREE IN PSYCHOL-
OGY, OR AN INDIVIDUAL WHO HAS OBTAINED AT LEAST A MASTER'S DEGREE IN
PSYCHOLOGY WHO WORKS IN A FEDERAL, STATE, COUNTY OR MUNICIPALLY OPERATED
CLINIC.
(5) MARRIAGE AND FAMILY THERAPIST: A PERSON CURRENTLY LICENSED AS A
MARRIAGE AND FAMILY THERAPIST BY THE DEPARTMENT OF EDUCATION OR WHO
POSSESSES A PERMIT FROM THE DEPARTMENT OF EDUCATION.
(6) MENTAL HEALTH COUNSELOR: A PERSON CURRENTLY LICENSED AS A MENTAL
HEALTH COUNSELOR BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A
PERMIT FROM THE DEPARTMENT OF EDUCATION.
(7) NURSE PRACTITIONER: A PERSON CURRENTLY CERTIFIED AS A NURSE PRAC-
TITIONER BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A PERMIT FROM
THE DEPARTMENT OF EDUCATION.
S. 7173 3
(8) PHYSICIAN: A PERSON CURRENTLY LICENSED AS A PHYSICIAN BY THE
DEPARTMENT OF EDUCATION OR WHO POSSESSES A PERMIT FROM THE DEPARTMENT OF
EDUCATION.
(9) PHYSICIAN ASSISTANT: A PERSON CURRENTLY REGISTERED AS A PHYSICIAN
ASSISTANT BY THE DEPARTMENT OF EDUCATION OR WHO POSSESSES A PERMIT FROM
THE DEPARTMENT OF EDUCATION.
(10) REGISTERED PROFESSIONAL NURSE: A PERSON CURRENTLY LICENSED AS A
REGISTERED PROFESSIONAL NURSE BY THE DEPARTMENT OF EDUCATION OR WHO
POSSESSES A PERMIT FROM THE DEPARTMENT OF EDUCATION.
(11) SOCIAL WORKER: A PERSON WHO IS EITHER CURRENTLY LICENSED AS A
LICENSED MASTER SOCIAL WORKER OR AS A LICENSED CLINICAL SOCIAL WORKER BY
THE DEPARTMENT OF EDUCATION, OR WHO POSSESSES A PERMIT FROM THE DEPART-
MENT OF EDUCATION TO PRACTICE AND USE THE TITLE OF EITHER LICENSED
MASTER SOCIAL WORKER OR LICENSED CLINICAL SOCIAL WORKER.
(K) TELECOMMUNICATION SYSTEM MEANS AN INTERACTIVE TELECOMMUNICATION
SYSTEM THAT IS USED TO TRANSMIT DATA BETWEEN THE ORIGINATING AND DISTANT
SITES.
(L) THE OFFICE MEANS THE OFFICE OF MENTAL HEALTH.
§ 85.03 APPROVAL TO UTILIZE TELEPSYCHIATRY SERVICES.
(A) TELEPSYCHIATRY SERVICES MAY BE AUTHORIZED BY THE OFFICE FOR
ASSESSMENT AND TREATMENT SERVICES PROVIDED BY PHYSICIANS OR NURSE PRAC-
TITIONERS, AS DEFINED IN THIS ARTICLE, FROM A SITE DISTANT FROM THE
LOCATION OF A PATIENT, WHERE THE PATIENT IS PHYSICALLY LOCATED AT AN
ORIGINATING SITE SUBJECT TO APPROVAL BY THE OFFICE, AND THE PHYSICIAN OR
NURSE PRACTITIONER IS PHYSICALLY LOCATED AT A DISTANT SITE THAT PARTIC-
IPATES IN THE NEW YORK STATE MEDICAID PROGRAM.
(B) A PROVIDER OF SERVICES SHALL OBTAIN PRIOR WRITTEN APPROVAL OF THE
OFFICE BEFORE UTILIZING TELEPSYCHIATRY SERVICES.
(C) APPROVAL SHALL BE BASED ON RECEIPT BY THE OFFICE OF THE FOLLOWING:
(1) SUFFICIENT WRITTEN DEMONSTRATION THAT TELEPSYCHIATRY WILL BE USED
FOR ASSESSMENT AND TREATMENT SERVICES CONSISTENT WITH THE PROVISIONS OF
THIS ARTICLE, AND THAT THE SERVICES ARE BEING REQUESTED BECAUSE THEY ARE
NECESSARY TO IMPROVE THE QUALITY OF CARE OF INDIVIDUALS RECEIVING
SERVICES;
(2) WHERE THE SPOKE SITE IS THE HOME OF THE PATIENT, SUFFICIENT WRIT-
TEN DEMONSTRATION THAT THE PATIENT IS HOME BOUND AND SOCIALLY ISOLATED
AND THAT SERVICES ARE BEING REQUESTED BECAUSE THEY ARE NECESSARY TO
PROVIDE CARE TO THE INDIVIDUAL, AND ALL REQUIREMENTS OF THIS ARTICLE ARE
SATISFIED;
(3) SUBMISSION OF A WRITTEN PLAN TO PROVIDE TELEPSYCHIATRY SERVICES
THAT SATISFIES THE PROVISIONS OF THIS ARTICLE AND INCLUDES:
(I) CONFIDENTIALITY PROTECTIONS FOR PERSONS WHO RECEIVE TELEPSYCHIATRY
SERVICES, INCLUDING MEASURES TO ENSURE THE SECURITY OF THE ELECTRONIC
TRANSMISSION;
(II) INFORMED CONSENT OF PERSONS WHO RECEIVE TELEPSYCHIATRY SERVICES;
(III) PROCEDURES FOR HANDLING EMERGENCIES WITH PERSONS WHO RECEIVE
TELEPSYCHIATRY SERVICES; AND
(IV) CONTINGENCY PROCEDURES TO USE WHEN THE DELIVERY OF TELEPSYCHIATRY
SERVICE IS INTERRUPTED, OR WHEN THE TRANSMISSION OF THE TWO-WAY INTER-
ACTIONS IS DEEMED INADEQUATE FOR THE PURPOSE OF SERVICE PROVISION.
(D) REQUESTS FOR APPROVAL TO OFFER TELEPSYCHIATRY SERVICES SHALL BE
SUBMITTED TO THE OFFICE'S FIELD OFFICE SERVING THE AREA IN WHICH THE
ORIGINATING SITE IS LOCATED. THE REQUEST FOR APPROVAL SHALL BE SUBMITTED
BY THE ORIGINATING SITE. SUCH FIELD OFFICE MAY MAKE AN ON-SITE VISIT TO
EITHER OR BOTH SITES PRIOR TO ISSUING APPROVAL.
S. 7173 4
(E) THE OFFICE SHALL PROVIDE ITS APPROVAL TO UTILIZE TELEPSYCHIATRY
SERVICES IN WRITING. THE PROVIDER OF SERVICES SHALL RETAIN A COPY OF THE
APPROVAL DOCUMENT AND SHALL MAKE IT AVAILABLE FOR INSPECTION UPON
REQUEST OF THE OFFICE.
(F) FAILURE TO ADHERE TO THE REQUIREMENTS SET FORTH IN THIS ARTICLE
MAY BE GROUNDS FOR REVOCATION OF SUCH APPROVAL. IN THE EVENT THAT THE
OFFICE DETERMINES THAT APPROVAL TO UTILIZE TELEPSYCHIATRY REVOKED, IT
WILL NOTIFY THE PROVIDER OF SERVICES OF ITS DECISION IN WRITING. THE
PROVIDER OF SERVICES MAY REQUEST AN INFORMAL ADMINISTRATIVE REVIEW OF
SUCH DECISION.
(1) THE PROVIDER OF SERVICES SHALL REQUEST SUCH REVIEW IN WRITING
WITHIN FIFTEEN DAYS OF THE DATE IT RECEIVES NOTICE OF REVOCATION OF
APPROVAL TO UTILIZE TELEPSYCHIATRY SERVICES TO THE COMMISSIONER OR HIS
OR HER DESIGNEE. THE REQUEST SHALL STATE SPECIFIC REASONS WHY SUCH
PROVIDER CONSIDERS THE REVOCATION OF APPROVAL INCORRECT AND SHALL BE
ACCOMPANIED BY ANY SUPPORTING EVIDENCE OR ARGUMENTS.
(2) THE COMMISSIONER OR HIS OR HER DESIGNEE SHALL NOTIFY THE PROVIDER
OF SERVICES, IN WRITING, OF THE RESULTS OF THE INFORMAL ADMINISTRATIVE
REVIEW WITHIN TWENTY DAYS OF RECEIPT OF THE REQUEST FOR REVIEW. FAILURE
OF THE COMMISSIONER OR HIS OR HER DESIGNEE TO RESPOND WITHIN THAT TIME
SHALL BE CONSIDERED CONFIRMATION OF THE REVOCATION OF DEEMED STATUS.
(3) THE COMMISSIONER'S DETERMINATION AFTER INFORMAL ADMINISTRATIVE
REVIEW SHALL BE FINAL AND NOT SUBJECT TO FURTHER ADMINISTRATIVE REVIEW.
§ 85.05 REQUIREMENTS FOR TELEPSYCHIATRY SERVICES.
(A) GENERAL REQUIREMENTS. (1) THE DISTANT SITE PRACTITIONER SHALL:
(I) POSSESS A CURRENT, VALID LICENSE TO PRACTICE IN NEW YORK STATE;
(II) DIRECTLY RENDER THE TELEPSYCHIATRY SERVICE;
(III) ABIDE BY THE LAWS AND REGULATIONS OF THE STATE OF NEW YORK
INCLUDING THIS CHAPTER AND ANY OTHER LAW, REGULATION, OR POLICY THAT
GOVERNS THE ASSESSMENT OR TREATMENT SERVICE BEING PROVIDED;
(IV) EXERCISE THE SAME STANDARD OF CARE AS IN-HOUSE DELIVERED
SERVICES; AND
(V) DELIVER SERVICES FROM A SITE THAT IS ENROLLED IN THE NEW YORK
STATE MEDICAID PROGRAM.
(2) THE DISTANT PROVIDER AND ORIGINATING SITE PROVIDER OF SERVICE
SHALL NOT BE TERMINATED, SUSPENDED, OR BARRED FROM THE MEDICAID OR MEDI-
CARE PROGRAM.
(3) IF THE ORIGINATING SITE IS A HOSPITAL, THE PRACTITIONER AT THE
DISTANT SITE SHALL BE CREDENTIALED AND PRIVILEGED BY SUCH HOSPITAL,
CONSISTENT WITH APPLICABLE ACCREDITATION STANDARDS.
(4) TELEPSYCHIATRY SERVICES SHALL BE RENDERED USING AN INTERACTIVE
TELECOMMUNICATION SYSTEM.
(5) A NOTATION SHALL BE MADE IN THE CLINICAL RECORD THAT INDICATES
THAT THE SERVICE WAS PROVIDED VIA TELEPSYCHIATRY AND WHICH SPECIFIES THE
TIME THE SERVICE WAS STARTED AND THE TIME IT ENDED.
(6) TELEPSYCHIATRY SERVICES PROVIDED TO PATIENTS UNDER AGE EIGHTEEN
MAY INCLUDE STAFF THAT ARE QUALIFIED MENTAL HEALTH PROFESSIONALS, AS
SUCH TERM IS DEFINED IN THIS ARTICLE, OR OTHER APPROPRIATE STAFF OF THE
ORIGINATING SITE IN THE ROOM WITH THE PATIENT. SUCH DETERMINATIONS SHALL
BE CLINICALLY BASED, CONSISTENT WITH CLINICAL GUIDELINES ISSUED BY THE
OFFICE.
(7) FOR THE PURPOSES OF THIS ARTICLE, TELEPSYCHIATRY SERVICES SHALL BE
CONSIDERED FACE-TO-FACE CONTACTS WHEN THE SERVICE IS DELIVERED IN
ACCORDANCE WITH THE PROVISIONS OF THE PLAN APPROVED BY THE OFFICE.
S. 7173 5
(8) CULTURALLY COMPETENT INTERPRETER SERVICES SHALL BE PROVIDED IN THE
PATIENT'S PREFERRED LANGUAGE WHEN THE PATIENT AND DISTANT PRACTITIONERS
DO NOT SPEAK THE SAME LANGUAGE.
(9) THE PRACTITIONER PROVIDING TELEPSYCHIATRY SERVICES AT A DISTANT
SITE SHALL BE CONSIDERED AN ACTIVE PART OF THE PATIENT'S TREATMENT TEAM
AND SHALL BE AVAILABLE FOR DISCUSSION OF THE CASE OR FOR INTERVIEWING
FAMILY MEMBERS AND OTHERS, AS THE CASE MAY REQUIRE. SUCH PRACTITIONER
SHALL PREPARE APPROPRIATE PROGRESS NOTES AND SECURELY FORWARD THEM TO
THE ORIGINATING PROVIDER AS A CONDITION OF REIMBURSEMENT.
(10) WHERE THE SPOKE, OR SITE AT WHICH THE PATIENT RECEIVES SERVICES,
IS THE HOME OF A HOMEBOUND OR SOCIALLY ISOLATED INDIVIDUAL, A WAIVER
FROM THE OFFICE SHALL BE OBTAINED BY THE SERVICE PROVIDER AND SHALL
ATTEST THAT THE PATIENT IS NOT PHYSICALLY OR EMOTIONALLY CAPABLE OF
TRAVEL TO A LICENSED FACILITY FOR THE RECEIPT OF CARE AND SHALL ALSO
ATTEST THAT ALL PROVISIONS OF THIS ARTICLE HAVE BEEN SATISFIED.
(11) TELEPSYCHIATRY SERVICES SHALL NOT BE USED:
(I) FOR PURPOSES OF ORDERING MEDICATION OVER OBJECTION OR RESTRAINT OR
SECLUSION, AS DEFINED IN THIS CHAPTER; OR
(II) TO SATISFY ANY SPECIFIC STATUTORY EXAMINATION, EVALUATION OR
ASSESSMENT REQUIREMENT NECESSARY FOR THE INVOLUNTARY REMOVAL FROM THE
COMMUNITY, OR INVOLUNTARY RETENTION IN A HOSPITAL PURSUANT TO ANY OF THE
PROVISIONS OF ARTICLE NINE OF THIS CHAPTER. PHYSICIANS CONDUCTING SUCH
EXAMINATIONS, EVALUATIONS OR ASSESSMENTS MAY ONLY UTILIZE TELEPSYCHIATRY
ON A CONSULTATIVE BASIS.
(B) PROTOCOLS AND PROCEDURES. A PROVIDER OF SERVICES APPROVED TO
UTILIZE TELEPSYCHIATRY SERVICES SHALL HAVE WRITTEN PROTOCOLS AND PROCE-
DURES THAT ADDRESS THE FOLLOWING:
(1) INFORMED CONSENT. PROTOCOLS SHALL EXIST AFFORDING PERSONS RECEIV-
ING SERVICES THE OPPORTUNITY TO PROVIDE INFORMED CONSENT TO PARTICIPATE
IN ANY SERVICES UTILIZING TELEPSYCHIATRY, INCLUDING THE RIGHT TO REFUSE
THESE SERVICES AND TO BE APPRISED OF THE ALTERNATIVES TO TELEPSYCHIATRY
SERVICES, INCLUDING ANY DELAYS IN SERVICE, NEED TO TRAVEL, OR RISKS
ASSOCIATED WITH NOT HAVING THE SERVICES PROVIDED BY TELEPSYCHIATRY. SUCH
INFORMED CONSENT MAY BE INCORPORATED INTO THE INFORMED CONSENT PROCESS
FOR IN-PERSON CARE, OR A SEPARATE INFORMED CONSENT PROCESS FOR TELEPSY-
CHIATRY SERVICES MAY BE DEVELOPED AND USED. THESE PROTOCOLS SHALL
INCLUDE:
(I) THE PATIENT BEING PROVIDED WITH BASIC INFORMATION ABOUT TELEPSY-
CHIATRY AND SHALL PROVIDE HIS OR HER INFORMED CONSENT TO PARTICIPATE IN
SERVICES UTILIZING THIS TECHNOLOGY. FOR PATIENTS UNDER AGE EIGHTEEN,
SUCH INFORMATION SHALL BE SHARED WITH AND INFORMED CONSENT OBTAINED FROM
THE PATIENT'S PARENT OR GUARDIAN.
(II) THE PATIENT HAVING THE RIGHT TO REFUSE TO PARTICIPATE IN TELEPSY-
CHIATRY SERVICES, IN WHICH CASE EVALUATIONS SHALL BE CONDUCTED IN-PERSON
BY APPROPRIATE CLINICIANS.
(III) TELEPSYCHIATRY SESSIONS NOT BEING RECORDED WITHOUT THE PATIENT'S
CONSENT.
(2) CONFIDENTIALITY. PROTOCOLS AND PROCEDURES SHOULD BE MAINTAINED AS
REQUIRED BY SECTION 33.13 OF THIS CHAPTER. SUCH PROTOCOLS SHALL ENSURE
THAT ALL CURRENT CONFIDENTIALITY REQUIREMENTS AND PROTECTIONS THAT APPLY
TO WRITTEN CLINICAL RECORDS SHALL APPLY TO SERVICES DELIVERED BY TELE-
COMMUNICATIONS, INCLUDING THE ACTUAL TRANSMISSION OF THE SERVICE, ANY
RECORDINGS MADE DURING THE TIME OF TRANSMISSION, AND ANY OTHER ELECTRON-
IC RECORDS.
(I) ALL CONFIDENTIALITY REQUIREMENTS THAT APPLY TO WRITTEN MEDICAL
RECORDS SHALL APPLY TO SERVICES DELIVERED BY TELECOMMUNICATIONS, INCLUD-
S. 7173 6
ING THE ACTUAL TRANSMISSION OF THE SERVICE, ANY RECORDINGS MADE DURING
THE TIME OF TRANSMISSION, AND ANY OTHER ELECTRONIC RECORDS.
(II) THE SPACES OCCUPIED BY THE PATIENT AT THE ORIGINATING SITE AND
THE PRACTITIONER AT THE DISTANT SITE SHALL MEET THE MINIMUM STANDARDS
FOR PRIVACY EXPECTED FOR PATIENT-CLINICIAN INTERACTION AT A SINGLE
LOCATION LICENSED BY THE OFFICE.
(3) SECURITY OF ELECTRONIC TRANSMISSION. ALL TELEPSYCHIATRY SERVICES
SHALL BE PERFORMED ON DEDICATED SECURE TRANSMISSION LINKAGES THAT MEET
MINIMUM FEDERAL AND STATE REQUIREMENTS, INCLUDING BUT NOT LIMITED TO
FEDERAL AND STATE REQUIREMENTS, AND WHICH ARE CONSISTENT WITH GUIDELINES
OF THE OFFICE. TRANSMISSIONS SHALL EMPLOY ACCEPTABLE AUTHENTICATION AND
IDENTIFICATION PROCEDURES BY BOTH THE SENDER AND THE RECEIVER.
(4) PSYCHIATRIC EMERGENCIES. PROTOCOLS SHOULD EXIST TO ADDRESS PSYCHI-
ATRIC EMERGENCIES, WHICH MAY OVERRIDE THE RIGHT TO CONFIDENTIALITY TO
REQUIRE THE PRESENCE OF OTHERS IF, FOR INSTANCE, AN INDIVIDUAL RECEIVING
SERVICES IS SUICIDAL, HOMICIDAL, DISSOCIATED, OR ACUTELY PSYCHOTIC
DURING THE EVALUATION OR TREATMENT SERVICE. IN GENERAL THIS INDIVIDUAL
SHOULD NOT BE MANAGED VIA TELEPSYCHIATRY WITHOUT QUALIFIED MENTAL HEALTH
PROFESSIONALS PRESENT AT THE ORIGINATING SITE, UNLESS THERE ARE NO
ADEQUATE ALTERNATIVES AND IMMEDIATE INTERVENTION IS DEEMED ESSENTIAL FOR
PATIENT SAFETY. ALL TELEPSYCHIATRY SITES SHALL HAVE A WRITTEN PROCEDURE
DETAILING THE AVAILABILITY OF IN-PERSON ASSESSMENTS BY A PHYSICIAN OR
NURSE PRACTITIONER IN AN EMERGENCY SITUATION.
(5) PRESCRIBING MEDICATIONS VIA TELEPSYCHIATRY. PROCEDURES FOR
PRESCRIBING MEDICATIONS THROUGH TELEPSYCHIATRY SHALL BE IDENTIFIED AND
SHALL BE IN ACCORDANCE WITH APPLICABLE NEW YORK AND FEDERAL REGULATIONS.
(6) PROCEDURES FOR FIRST EVALUATIONS FOR INVOLUNTARY COMMITMENTS.
UNDER NEW YORK STATE LAW, PHYSICIANS SHALL CONDUCT FIRST EVALUATIONS FOR
INVOLUNTARY COMMITMENTS OF INDIVIDUALS. IF THESE EVALUATORS WANT ADDI-
TIONAL CONSULTATION BEFORE RENDERING THEIR DECISION, THEY MAY OBTAIN
CONSULTATION FROM PSYCHIATRISTS VIA TELEPSYCHIATRY. THE RESPONSIBILITY
FOR SIGNING THE COMMITMENT PAPERS REMAINS WITH THE PHYSICIAN WHO ACTUAL-
LY CONDUCTED THE EVALUATION OF THE INDIVIDUAL AT THE FACILITY, NOT THE
PSYCHIATRIST WHO PROVIDED THE TELEPSYCHIATRIC CONSULTATION.
(7) PATIENT RIGHTS. PATIENT RIGHTS POLICIES SHALL ENSURE THAT EACH
INDIVIDUAL RECEIVING TELEPSYCHIATRY SERVICES:
(I) IS INFORMED AND MADE AWARE OF THE ROLE OF THE PRACTITIONER AT THE
DISTANT SITE, AS WELL AS QUALIFIED PROFESSIONAL STAFF AT THE ORIGINATING
SITE WHO ARE GOING TO BE RESPONSIBLE FOR FOLLOW-UP OR ON-GOING CARE;
(II) IS INFORMED AND MADE AWARE OF THE LOCATION OF THE DISTANT SITE
AND ALL QUESTIONS REGARDING THE EQUIPMENT, THE TECHNOLOGY, ETC., ARE
ADDRESSED;
(III) HAS THE RIGHT TO HAVE APPROPRIATELY TRAINED STAFF IMMEDIATELY
AVAILABLE TO HIM OR HER WHILE RECEIVING THE TELEPSYCHIATRY SERVICE TO
ATTEND TO EMERGENCIES OR OTHER NEEDS;
(IV) HAS THE RIGHT TO BE INFORMED OF ALL PARTIES WHO WILL BE PRESENT
AT EACH END OF THE TELEPSYCHIATRY TRANSMISSION; AND
(V) IF THE PATIENT IS A MINOR, THE PATIENT AND HIS OR HER PARENT OR
GUARDIAN SHALL BE GIVEN THE OPPORTUNITY TO PROVIDE INPUT REGARDING WHO
WILL BE IN THE ROOM WITH THE PATIENT WHEN TELEPSYCHIATRY SERVICES ARE
PROVIDED.
(8) QUALITY OF CARE. ALL TELEPSYCHIATRY SITES SHALL HAVE ESTABLISHED
WRITTEN QUALITY OF CARE PROTOCOLS TO ENSURE THAT THE SERVICES MEET THE
REQUIREMENTS OF NEW YORK STATE AND FEDERAL LAWS AND ESTABLISHED PATIENT
CARE STANDARDS. A REVIEW OF TELEPSYCHIATRY SERVICES SHALL BE INCLUDED IN
THE PROVIDER'S QUALITY MANAGEMENT PROCESS.
S. 7173 7
(9) CONTINGENCY PLAN. ALL TELEPSYCHIATRY SITES SHALL HAVE A WRITTEN
PROCEDURE DETAILING THE CONTINGENCY PLAN WHEN THERE IS A FAILURE OF THE
TRANSMISSION OR OTHER TECHNICAL DIFFICULTIES THAT RENDER THE SERVICE
UNDELIVERABLE.
(C) GUIDELINES OF THE OFFICE. THE OFFICE SHALL DEVELOP GUIDELINES TO
ASSIST PROVIDERS IN COMPLYING WITH THE PROVISIONS OF THIS ARTICLE AND IN
ACHIEVING TREATMENT GOALS THROUGH THE USE OF TELEPSYCHIATRY. THE OFFICE
SHALL POST SUCH GUIDELINES ON ITS PUBLIC WEBSITE.
§ 85.07 REIMBURSEMENT FOR TELEPSYCHIATRY SERVICES.
(A) THE ORIGINATING SITE WHERE THE PATIENT IS ADMITTED IS AUTHORIZED
TO BILL MEDICAID FOR TELEPSYCHIATRY SERVICES, OR THE PROVIDER WHEN THE
SPOKE SITE IS THE HOME OF A HOMEBOUND OR SOCIALLY ISOLATED PATIENT.
(B) UNDER THE MEDICAID PROGRAM, TELEPSYCHIATRY SERVICES SHALL BE
COVERED WHEN MEDICALLY NECESSARY AND UNDER THE FOLLOWING CIRCUMSTANCES:
(1) THE PERSON RECEIVING SERVICES IS LOCATED AT THE ORIGINATING SITE
AND THE PRACTITIONER IS LOCATED AT THE DISTANT SITE;
(2) THE ORIGINATING SITE IS THE PROVIDER OF SERVICES WHERE THE PERSON
RECEIVING SERVICES IS LOCATED;
(3) THE DISTANT SITE IS THE SITE WHERE THE PRACTITIONER IS LOCATED;
(4) THE PERSON RECEIVING SERVICES IS PRESENT DURING THE TELEPSYCHIATRY
ENCOUNTER OR CONSULTATION;
(5) THE PHYSICIAN OR NURSE PRACTITIONER IS NOT CONDUCTING THE TELEPSY-
CHIATRY ENCOUNTER CONSULTATION AT THE ORIGINATING SITE;
(6) THE REQUEST FOR TELEPSYCHIATRY SERVICES AND THE RATIONALE FOR THE
REQUEST ARE DOCUMENTED IN THE INDIVIDUAL'S CLINICAL RECORD;
(7) THE CLINICAL RECORD INCLUDES DOCUMENTATION THAT THE TELEPSYCHIATRY
ENCOUNTER OR CONSULTATION OCCURRED AND THAT THE RESULTS AND FINDINGS
WERE COMMUNICATED TO THE REQUESTING PROVIDER OF SERVICES;
(8) THE PRACTITIONER AT THE DISTANT SITE IS:
(I) LICENSED IN NEW YORK STATE;
(II) PRACTICING WITHIN HIS OR HER SCOPE OF SPECIALTY PRACTICE;
(III) PROVIDING SERVICES FROM A SITE THAT PARTICIPATES IN MEDICAID;
(IV) AFFILIATED WITH THE ORIGINATING SITE FACILITY; AND
(V) IF THE ORIGINATING SITE IS A HOSPITAL, CREDENTIALED AND PRIVILEGED
AT THE ORIGINATING SITE FACILITY.
(C) IF THE PERSON RECEIVING SERVICES IS NOT PRESENT DURING THE
PROVISION OF THE TELEPSYCHIATRY SERVICE, THE SERVICE IS NOT ELIGIBLE FOR
MEDICAID REIMBURSEMENT AND REMAINS THE RESPONSIBILITY OF THE ORIGINATING
FACILITY.
(D) THE FOLLOWING INTERACTIONS DO NOT CONSTITUTE REIMBURSABLE TELEPSY-
CHIATRY SERVICES:
(1) TELEPHONE CONVERSATIONS;
(2) VIDEO CELL PHONE INTERACTIONS;
(3) E-MAIL MESSAGES.
(E) THE ORIGINATING SITE MAY BILL FOR ADMINISTRATIVE EXPENSES ONLY
WHEN A TELEPSYCHIATRIC CONNECTION IS BEING PROVIDED AND A PHYSICIAN OR
NURSE PRACTITIONER IS NOT PRESENT AT THE ORIGINATING SITE WITH THE
PATIENT AT THE TIME OF THE ENCOUNTER.
(F) REIMBURSEMENT FOR SERVICES PROVIDED VIA TELEPSYCHIATRY SHALL BE IN
ACCORDANCE WITH THE RATES AND FEES ESTABLISHED BY THE OFFICE AND
APPROVED BY THE DIRECTOR OF THE BUDGET.
(G) IF A TELEPSYCHIATRY SERVICE IS UNDELIVERABLE DUE TO A FAILURE OF
TRANSMISSION OR OTHER TECHNICAL DIFFICULTY, REIMBURSEMENT SHALL NOT BE
PROVIDED.
§ 85.09 CONTRACTS FOR THE PROVISION OF TELEPSYCHIATRY SERVICES.
S. 7173 8
(A) NOTHING IN THIS ARTICLE SHALL BE DEEMED TO PROHIBIT A PROVIDER OF
SERVICES FROM PROVIDING ASSESSMENT AND TREATMENT SERVICES, CONSISTENT
WITH APPLICABLE REGULATIONS OF THE OFFICE, AS A DISTANT SITE VIA TELE-
PSYCHIATRY PURSUANT TO CONTRACT WITH AN ORIGINATING SITE PROVIDER THAT
IS NOT LICENSED OR OPERATED BY THE OFFICE, BUT WHICH IS ENROLLED IN THE
MEDICAID PROGRAM.
(B) ALTHOUGH PRIOR APPROVAL OF THE OFFICE IS NOT REQUIRED BEFORE
ENTERING INTO SUCH CONTRACTS, NOTICE OF SUCH CONTRACTS OR AGREEMENTS
SHALL BE PROVIDED BY THE DISTANT PROVIDER OF SERVICES WITHIN THIRTY DAYS
AFTER EXECUTION OF SUCH CONTRACT TO THE FIELD OFFICE SERVING THE AREA
WHERE SUCH PROVIDER OF SERVICES IS LOCATED.
(C) REIMBURSEMENT FOR TELEPSYCHIATRY SERVICE SHALL BE PURSUANT TO SUCH
CONTRACTS AND ARE NOT SEPARATELY BILLABLE BY THE DISTANT SITE.
§ 3. This act shall take effect immediately.
