STATE OF NEW YORK ________________________________________________________________________ 7173 IN SENATE (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: 1 Section 1. Subdivision (b) of section 7.41 of the mental hygiene law 2 is amended by adding a new paragraph 10 to read as follows: 3 (10) Telepsychiatry. Programs, as defined under article eighty-five of 4 this chapter, which offer homebound or socially isolated geriatric 5 patients with the use of two-way real-time interactive audio and video 6 equipment access to provide and support mental health services at a 7 distance. 8 § 2. The mental hygiene law is amended by adding a new article 85 to 9 read as follows: 10 ARTICLE 85 11 TELEPSYCHIATRY 12 Section 85.01 Definitions. 13 85.03 Approval to utilize telepsychiatry services. 14 85.05 Requirements for telepsychiatry services. 15 85.07 Reimbursement for telepsychiatry services. 16 85.09 Contracts for the provision of telepsychiatry services. 17 § 85.01 Definitions. 18 For purposes of this article, the following definitions shall apply: 19 (a) Telepsychiatry means the use of two-way real-time interactive 20 audio and video equipment to provide and support mental health services 21 at a distance. Such services do not include a telephone conversation, 22 electronic mail message, or facsimile transmission between a provider 23 and a patient or a consultation between two physicians or nurse practi- 24 tioners, or other staff, although these activities may support telepsy- 25 chiatry services. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13687-01-7

S. 7173 2 1 (b) Distant or hub site means the distant location at which the prac- 2 titioner rendering the telepsychiatry service is located. 3 (c) Encounter means a telepsychiatry event involving patient contact, 4 whereby the care of the patient is the direct responsibility of both the 5 originating, or spoke site, provider and the distant, or hub site, 6 provider. 7 (d) Encryption means a system of encoding data on a web page or email 8 where the information can only be retrieved and decoded by the person or 9 computer system authorized to access it. 10 (e) Originating or spoke site means the site where the patient is 11 physically located at the time mental health services are delivered to 12 her or him by means of telepsychiatry. 13 (f) Nurse practitioner in psychiatry means a person currently certi- 14 fied as a nurse practitioner with an approved specialty area of psychia- 15 try by the department of education or who possesses a permit from the 16 department of education. 17 (g) Physician means a physician currently licensed to practice medi- 18 cine in New York who (i) is a diplomat of the American board of psychia- 19 try and neurology or is eligible to be certified by that board, or (ii) 20 is certified by the American osteopathic board of neurology and psychia- 21 try or is eligible to be certified by that board. 22 (h) Practitioner means a physician or nurse practitioner in psychiatry 23 who is providing telepsychiatry services from a distant or hub site in 24 accordance with the provisions of this article. 25 (i) Provider of services means a provider of mental health services 26 licensed pursuant to article thirty-one of this chapter. 27 (j) Qualified mental health professional means a practitioner possess- 28 ing a license or a permit from the department of education who is quali- 29 fied by credentials, training, and experience to provide direct services 30 related to the treatment of mental illness and shall include physicians 31 and nurse practitioners in psychiatry, as defined in subdivisions (f) 32 and (g) of this section, as well as the following: 33 (1) Creative arts therapist: a person currently licensed as a creative 34 arts therapist by the department of education or who possesses a crea- 35 tive arts therapist permit from the department of education. 36 (2) Licensed practical nurse: a person currently licensed as a 37 licensed practical nurse by the department of education or who possesses 38 a licensed practical nurse permit from the department of education. 39 (3) Licensed psychoanalyst: a person currently licensed as a psycho- 40 analyst by the department of education or who possesses a permit from 41 the department of education. 42 (4) Licensed psychologist: a person currently licensed as a psychol- 43 ogist by the department of education, or who possesses a permit from the 44 department of education and who possesses a doctoral degree in psychol- 45 ogy, or an individual who has obtained at least a master's degree in 46 psychology who works in a federal, state, county or municipally operated 47 clinic. 48 (5) Marriage and family therapist: a person currently licensed as a 49 marriage and family therapist by the department of education or who 50 possesses a permit from the department of education. 51 (6) Mental health counselor: a person currently licensed as a mental 52 health counselor by the department of education or who possesses a 53 permit from the department of education. 54 (7) Nurse practitioner: a person currently certified as a nurse prac- 55 titioner by the department of education or who possesses a permit from 56 the department of education.

S. 7173 3 1 (8) Physician: a person currently licensed as a physician by the 2 department of education or who possesses a permit from the department of 3 education. 4 (9) Physician assistant: a person currently registered as a physician 5 assistant by the department of education or who possesses a permit from 6 the department of education. 7 (10) Registered professional nurse: a person currently licensed as a 8 registered professional nurse by the department of education or who 9 possesses a permit from the department of education. 10 (11) Social worker: a person who is either currently licensed as a 11 licensed master social worker or as a licensed clinical social worker by 12 the department of education, or who possesses a permit from the depart- 13 ment of education to practice and use the title of either licensed 14 master social worker or licensed clinical social worker. 15 (k) Telecommunication system means an interactive telecommunication 16 system that is used to transmit data between the originating and distant 17 sites. 18 (l) The office means the office of mental health. 19 § 85.03 Approval to utilize telepsychiatry services. 20 (a) Telepsychiatry services may be authorized by the office for 21 assessment and treatment services provided by physicians or nurse prac- 22 titioners, as defined in this article, from a site distant from the 23 location of a patient, where the patient is physically located at an 24 originating site subject to approval by the office, and the physician or 25 nurse practitioner is physically located at a distant site that partic- 26 ipates in the New York state Medicaid program. 27 (b) A provider of services shall obtain prior written approval of the 28 office before utilizing telepsychiatry services. 29 (c) Approval shall be based on receipt by the office of the following: 30 (1) Sufficient written demonstration that telepsychiatry will be used 31 for assessment and treatment services consistent with the provisions of 32 this article, and that the services are being requested because they are 33 necessary to improve the quality of care of individuals receiving 34 services; 35 (2) Where the spoke site is the home of the patient, sufficient writ- 36 ten demonstration that the patient is home bound and socially isolated 37 and that services are being requested because they are necessary to 38 provide care to the individual, and all requirements of this article are 39 satisfied; 40 (3) Submission of a written plan to provide telepsychiatry services 41 that satisfies the provisions of this article and includes: 42 (i) confidentiality protections for persons who receive telepsychiatry 43 services, including measures to ensure the security of the electronic 44 transmission; 45 (ii) informed consent of persons who receive telepsychiatry services; 46 (iii) procedures for handling emergencies with persons who receive 47 telepsychiatry services; and 48 (iv) contingency procedures to use when the delivery of telepsychiatry 49 service is interrupted, or when the transmission of the two-way inter- 50 actions is deemed inadequate for the purpose of service provision. 51 (d) Requests for approval to offer telepsychiatry services shall be 52 submitted to the office's field office serving the area in which the 53 originating site is located. The request for approval shall be submitted 54 by the originating site. Such field office may make an on-site visit to 55 either or both sites prior to issuing approval.

S. 7173 4 1 (e) The office shall provide its approval to utilize telepsychiatry 2 services in writing. The provider of services shall retain a copy of the 3 approval document and shall make it available for inspection upon 4 request of the office. 5 (f) Failure to adhere to the requirements set forth in this article 6 may be grounds for revocation of such approval. In the event that the 7 office determines that approval to utilize telepsychiatry revoked, it 8 will notify the provider of services of its decision in writing. The 9 provider of services may request an informal administrative review of 10 such decision. 11 (1) The provider of services shall request such review in writing 12 within fifteen days of the date it receives notice of revocation of 13 approval to utilize telepsychiatry services to the commissioner or his 14 or her designee. The request shall state specific reasons why such 15 provider considers the revocation of approval incorrect and shall be 16 accompanied by any supporting evidence or arguments. 17 (2) The commissioner or his or her designee shall notify the provider 18 of services, in writing, of the results of the informal administrative 19 review within twenty days of receipt of the request for review. Failure 20 of the commissioner or his or her designee to respond within that time 21 shall be considered confirmation of the revocation of deemed status. 22 (3) The commissioner's determination after informal administrative 23 review shall be final and not subject to further administrative review. 24 § 85.05 Requirements for telepsychiatry services. 25 (a) General requirements. (1) The distant site practitioner shall: 26 (i) possess a current, valid license to practice in New York state; 27 (ii) directly render the telepsychiatry service; 28 (iii) abide by the laws and regulations of the state of New York 29 including this chapter and any other law, regulation, or policy that 30 governs the assessment or treatment service being provided; 31 (iv) exercise the same standard of care as in-house delivered 32 services; and 33 (v) deliver services from a site that is enrolled in the New York 34 state Medicaid program. 35 (2) The distant provider and originating site provider of service 36 shall not be terminated, suspended, or barred from the Medicaid or Medi- 37 care program. 38 (3) If the originating site is a hospital, the practitioner at the 39 distant site shall be credentialed and privileged by such hospital, 40 consistent with applicable accreditation standards. 41 (4) Telepsychiatry services shall be rendered using an interactive 42 telecommunication system. 43 (5) A notation shall be made in the clinical record that indicates 44 that the service was provided via telepsychiatry and which specifies the 45 time the service was started and the time it ended. 46 (6) Telepsychiatry services provided to patients under age eighteen 47 may include staff that are qualified mental health professionals, as 48 such term is defined in this article, or other appropriate staff of the 49 originating site in the room with the patient. Such determinations shall 50 be clinically based, consistent with clinical guidelines issued by the 51 office. 52 (7) For the purposes of this article, telepsychiatry services shall be 53 considered face-to-face contacts when the service is delivered in 54 accordance with the provisions of the plan approved by the office.

S. 7173 5 1 (8) Culturally competent interpreter services shall be provided in the 2 patient's preferred language when the patient and distant practitioners 3 do not speak the same language. 4 (9) The practitioner providing telepsychiatry services at a distant 5 site shall be considered an active part of the patient's treatment team 6 and shall be available for discussion of the case or for interviewing 7 family members and others, as the case may require. Such practitioner 8 shall prepare appropriate progress notes and securely forward them to 9 the originating provider as a condition of reimbursement. 10 (10) Where the spoke, or site at which the patient receives services, 11 is the home of a homebound or socially isolated individual, a waiver 12 from the office shall be obtained by the service provider and shall 13 attest that the patient is not physically or emotionally capable of 14 travel to a licensed facility for the receipt of care and shall also 15 attest that all provisions of this article have been satisfied. 16 (11) Telepsychiatry services shall not be used: 17 (i) for purposes of ordering medication over objection or restraint or 18 seclusion, as defined in this chapter; or 19 (ii) to satisfy any specific statutory examination, evaluation or 20 assessment requirement necessary for the involuntary removal from the 21 community, or involuntary retention in a hospital pursuant to any of the 22 provisions of article nine of this chapter. Physicians conducting such 23 examinations, evaluations or assessments may only utilize telepsychiatry 24 on a consultative basis. 25 (b) Protocols and procedures. A provider of services approved to 26 utilize telepsychiatry services shall have written protocols and proce- 27 dures that address the following: 28 (1) Informed consent. Protocols shall exist affording persons receiv- 29 ing services the opportunity to provide informed consent to participate 30 in any services utilizing telepsychiatry, including the right to refuse 31 these services and to be apprised of the alternatives to telepsychiatry 32 services, including any delays in service, need to travel, or risks 33 associated with not having the services provided by telepsychiatry. Such 34 informed consent may be incorporated into the informed consent process 35 for in-person care, or a separate informed consent process for telepsy- 36 chiatry services may be developed and used. These protocols shall 37 include: 38 (i) The patient being provided with basic information about telepsy- 39 chiatry and shall provide his or her informed consent to participate in 40 services utilizing this technology. For patients under age eighteen, 41 such information shall be shared with and informed consent obtained from 42 the patient's parent or guardian. 43 (ii) The patient having the right to refuse to participate in telepsy- 44 chiatry services, in which case evaluations shall be conducted in-person 45 by appropriate clinicians. 46 (iii) Telepsychiatry sessions not being recorded without the patient's 47 consent. 48 (2) Confidentiality. Protocols and procedures should be maintained as 49 required by section 33.13 of this chapter. Such protocols shall ensure 50 that all current confidentiality requirements and protections that apply 51 to written clinical records shall apply to services delivered by tele- 52 communications, including the actual transmission of the service, any 53 recordings made during the time of transmission, and any other electron- 54 ic records. 55 (i) All confidentiality requirements that apply to written medical 56 records shall apply to services delivered by telecommunications, includ-

S. 7173 6 1 ing the actual transmission of the service, any recordings made during 2 the time of transmission, and any other electronic records. 3 (ii) The spaces occupied by the patient at the originating site and 4 the practitioner at the distant site shall meet the minimum standards 5 for privacy expected for patient-clinician interaction at a single 6 location licensed by the office. 7 (3) Security of electronic transmission. All telepsychiatry services 8 shall be performed on dedicated secure transmission linkages that meet 9 minimum federal and state requirements, including but not limited to 10 federal and state requirements, and which are consistent with guidelines 11 of the office. Transmissions shall employ acceptable authentication and 12 identification procedures by both the sender and the receiver. 13 (4) Psychiatric emergencies. Protocols should exist to address psychi- 14 atric emergencies, which may override the right to confidentiality to 15 require the presence of others if, for instance, an individual receiving 16 services is suicidal, homicidal, dissociated, or acutely psychotic 17 during the evaluation or treatment service. In general this individual 18 should not be managed via telepsychiatry without qualified mental health 19 professionals present at the originating site, unless there are no 20 adequate alternatives and immediate intervention is deemed essential for 21 patient safety. All telepsychiatry sites shall have a written procedure 22 detailing the availability of in-person assessments by a physician or 23 nurse practitioner in an emergency situation. 24 (5) Prescribing medications via telepsychiatry. Procedures for 25 prescribing medications through telepsychiatry shall be identified and 26 shall be in accordance with applicable New York and federal regulations. 27 (6) Procedures for first evaluations for involuntary commitments. 28 Under New York state law, physicians shall conduct first evaluations for 29 involuntary commitments of individuals. If these evaluators want addi- 30 tional consultation before rendering their decision, they may obtain 31 consultation from psychiatrists via telepsychiatry. The responsibility 32 for signing the commitment papers remains with the physician who actual- 33 ly conducted the evaluation of the individual at the facility, not the 34 psychiatrist who provided the telepsychiatric consultation. 35 (7) Patient rights. Patient rights policies shall ensure that each 36 individual receiving telepsychiatry services: 37 (i) is informed and made aware of the role of the practitioner at the 38 distant site, as well as qualified professional staff at the originating 39 site who are going to be responsible for follow-up or on-going care; 40 (ii) is informed and made aware of the location of the distant site 41 and all questions regarding the equipment, the technology, etc., are 42 addressed; 43 (iii) has the right to have appropriately trained staff immediately 44 available to him or her while receiving the telepsychiatry service to 45 attend to emergencies or other needs; 46 (iv) has the right to be informed of all parties who will be present 47 at each end of the telepsychiatry transmission; and 48 (v) if the patient is a minor, the patient and his or her parent or 49 guardian shall be given the opportunity to provide input regarding who 50 will be in the room with the patient when telepsychiatry services are 51 provided. 52 (8) Quality of care. All telepsychiatry sites shall have established 53 written quality of care protocols to ensure that the services meet the 54 requirements of New York state and federal laws and established patient 55 care standards. A review of telepsychiatry services shall be included in 56 the provider's quality management process.

S. 7173 7 1 (9) Contingency plan. All telepsychiatry sites shall have a written 2 procedure detailing the contingency plan when there is a failure of the 3 transmission or other technical difficulties that render the service 4 undeliverable. 5 (c) Guidelines of the office. The office shall develop guidelines to 6 assist providers in complying with the provisions of this article and in 7 achieving treatment goals through the use of telepsychiatry. The office 8 shall post such guidelines on its public website. 9 § 85.07 Reimbursement for telepsychiatry services. 10 (a) The originating site where the patient is admitted is authorized 11 to bill Medicaid for telepsychiatry services, or the provider when the 12 spoke site is the home of a homebound or socially isolated patient. 13 (b) Under the Medicaid program, telepsychiatry services shall be 14 covered when medically necessary and under the following circumstances: 15 (1) the person receiving services is located at the originating site 16 and the practitioner is located at the distant site; 17 (2) the originating site is the provider of services where the person 18 receiving services is located; 19 (3) the distant site is the site where the practitioner is located; 20 (4) the person receiving services is present during the telepsychiatry 21 encounter or consultation; 22 (5) the physician or nurse practitioner is not conducting the telepsy- 23 chiatry encounter consultation at the originating site; 24 (6) the request for telepsychiatry services and the rationale for the 25 request are documented in the individual's clinical record; 26 (7) the clinical record includes documentation that the telepsychiatry 27 encounter or consultation occurred and that the results and findings 28 were communicated to the requesting provider of services; 29 (8) the practitioner at the distant site is: 30 (i) licensed in New York state; 31 (ii) practicing within his or her scope of specialty practice; 32 (iii) providing services from a site that participates in Medicaid; 33 (iv) affiliated with the originating site facility; and 34 (v) if the originating site is a hospital, credentialed and privileged 35 at the originating site facility. 36 (c) If the person receiving services is not present during the 37 provision of the telepsychiatry service, the service is not eligible for 38 Medicaid reimbursement and remains the responsibility of the originating 39 facility. 40 (d) The following interactions do not constitute reimbursable telepsy- 41 chiatry services: 42 (1) telephone conversations; 43 (2) video cell phone interactions; 44 (3) e-mail messages. 45 (e) The originating site may bill for administrative expenses only 46 when a telepsychiatric connection is being provided and a physician or 47 nurse practitioner is not present at the originating site with the 48 patient at the time of the encounter. 49 (f) Reimbursement for services provided via telepsychiatry shall be in 50 accordance with the rates and fees established by the office and 51 approved by the director of the budget. 52 (g) If a telepsychiatry service is undeliverable due to a failure of 53 transmission or other technical difficulty, reimbursement shall not be 54 provided. 55 § 85.09 Contracts for the provision of telepsychiatry services.

S. 7173 8 1 (a) Nothing in this article shall be deemed to prohibit a provider of 2 services from providing assessment and treatment services, consistent 3 with applicable regulations of the office, as a distant site via tele- 4 psychiatry pursuant to contract with an originating site provider that 5 is not licensed or operated by the office, but which is enrolled in the 6 Medicaid program. 7 (b) Although prior approval of the office is not required before 8 entering into such contracts, notice of such contracts or agreements 9 shall be provided by the distant provider of services within thirty days 10 after execution of such contract to the field office serving the area 11 where such provider of services is located. 12 (c) Reimbursement for telepsychiatry service shall be pursuant to such 13 contracts and are not separately billable by the distant site. 14 § 3. This act shall take effect immediately.

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