Advocacy to protect Audio Only
for NYers with private health insurance

July 1, 2021

As you know the NYS Council has been advocating with leaders at the Department of Financial Services (DFS) to extend its’ current emergency regulation that requires private health plans to reimburse providers for services utilizing the audio only modality beyond the current July 6 expiration date.  The status of the DFS regulations is posted here:

We continue to advocate for a renewal of the regulation however at this time we don’t have information as to whether the 62nd Amendment will be renewed.

In an effort to compel the Department to continue the regulation yesterday I wrote a letter to the DFS Superintendent on behalf of a broad group of advocacy organizations.  I had help from the group and we quickly got it out the door.  You will note that the NYS Psychiatric Association, the NYS Psychological Association and the NYS Society for Clinical Social Work also signed on to the letter (attached).  Thanks are due to Karin Carreau of Carreau Consulting for rapidly seeking sign on approval from the Psychiatric Association, the Psychologists and the Clinical Social Workers.

We will continue our efforts to compel DFS to do the right thing and extend the emergency regulation for at least the same amount of time that has been granted in the NYS Medicaid Program.

Below is the current law related to Medicaid and audio only.  Awaiting DOH regulations as you know:
                            LAWS OF NEW YORK, 2020
                                  CHAPTER 124
   AN  ACT  to amend the public health law, in relation to including audio-
     only and video-only telehealth  and  telemedicine  services  in  those
     telehealth and telemedicine services eligible for reimbursement
        Became a law June 17, 2020, with the approval of the Governor.
            Passed by a majority vote, three-fifths being present.
     The  People of the State of New York, represented in Senate and Assem-
   bly, do enact as follows:
     Section 1. Subdivision 4 of section 2999-cc of the public health  law,
   as  added  by  chapter  6  of  the  laws  of 2015, is amended to read as
     4. "Telehealth" means the use of electronic information  and  communi-
   cation  technologies  by  telehealth  providers  to  deliver health care
   services, which shall include the assessment,  diagnosis,  consultation,
   treatment,  education,  care  management  and/or  self-management  of  a
   patient. Telehealth shall not include delivery of health  care  services
   by means of [audio-only telephone communication,] facsimile machines, or
   electronic  messaging  alone,  though  use  of these technologies is not
   precluded if used in conjunction with telemedicine,  store  and  forward
   technology,  or remote patient monitoring. For purposes of this section,
   telehealth shall be limited to telemedicine, store and forward technolo-
   gy, [and] remote patient monitoring and  audio-only  telephone  communi-
   cation,  except  that  with  respect  to  the medical assistance program
   established under section three hundred sixty-six of the social services
   law, and the child health insurance plan under title  one-A  of  article
   twenty-five  of  this chapter, telehealth shall include audio-only tele-
   phone communication only to the extent defined in regulations as may  be
   promulgated by the commissioner. This subdivision shall not preclude the
   delivery  of  health care services by means of "home telehealth" as used
   in section thirty-six hundred fourteen of this chapter.
     § 2. Section 2999-ee of the public health law, as added by  section  3
   of  part  HH  of  chapter  56 of the laws of 2020, is amended to read as
     § 2999-ee. Increased application of telehealth. In order  to  increase
   the  application of telehealth in behavioral health, oral health, mater-
   nity care, care management, services provided in emergency  departments,
   and  services  provided  to  certain high-need populations to the extent
   such services are deemed appropriate for  the  populations  served,  and
   notwithstanding the definitions set forth in section twenty-nine hundred
   ninety-nine-cc of this article, in consultation with the commissioner of
   the  office  of  children  and  family services, the commissioner of the
   office of mental health, the commissioner of  the  office  of  addiction
   services and supports, or the commissioner of the office for people with
   developmental  disabilities, as applicable, the commissioner may specify
   in regulation additional  acceptable  modalities  for  the  delivery  of
   health  care services via telehealth, including but not limited to audi-
   o-only or video-only telephone communications, online portals and survey
   EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law
                                to be omitted.


   CHAP. 124                          2
   applications, and may specify additional categories of originating sites
   at which a patient may be located at the time health care  services  are
   delivered to the extent such additional modalities and originating sites
   are deemed appropriate for the populations served.
     §  3.  Subdivision  1  of section 2999-dd of the public health law, as
   amended by section 2 of part HH of chapter 56 of the laws  of  2020,  is
   amended to read as follows:
     1.  Health  care  services  delivered  by means of telehealth shall be
   entitled to reimbursement under section three hundred  sixty-seven-u  of
   the  social services law; provided however, reimbursement for additional
   modalities, provider  categories  and  originating  sites  specified  in
   accordance with section twenty-nine hundred ninety-nine-ee of this arti-
   cle,  and  audio-only  telephone  communication  defined  in regulations
   promulgated pursuant to subdivision four of section twenty-nine  hundred
   ninety-nine-cc  of this article, shall be contingent upon federal finan-
   cial participation.
     § 4. This act shall take effect immediately.
   The Legislature of the STATE OF NEW YORK ss:
     Pursuant to the authority vested in us by section 70-b of  the  Public
   Officers  Law,  we  hereby  jointly  certify that this slip copy of this
   session law was printed under our direction and, in accordance with such
   section, is entitled to be read into evidence.
      ANDREA STEWART-COUSINS                             CARL E. HEASTIE
   Temporary President of the Senate                Speaker of the Assemb