NYSDOH Rule Making on Telehealth and more

January 12, 2022

As a reminder, on December 22 we sent all NYS Council members an email at 10:38 a.m. regarding a Department of Financial Services (DFS – regulates private insurers/commercial plans) Regulation stating that DFS was permanently requiring all state regulated insurers to cover audio-only telehealth services, when medically necessary.  I have pasted the contents of the email we sent on 12/22 at the bottom of this email.

Update:  Today’s (1/12/2022) NY State Register (https://dos.ny.gov/system/files/documents/2022/01/011222.pdf)  includes an Emergency Rule Making by NYSDOH (pages 5-6) effective 12/22/21 relating to ensuring continuity of care of telehealth services provided to Medicaid enrollees.

The rule adds Part 538 regarding State Reimbursement for Telehealth Services as follows:

Section 538.1 Authorized providers. For purposes of medical assistance reimbursement during the federally declared public health emergency related to the COVID-19 pandemic, all Medicaid providers authorized to provide in-person services are authorized to provide such services via telehealth, as long as such telehealth services are appropriate to meet a patient’s health care needs and are within a provider’s scope of practice.

Section 538.2 Acceptable telehealth modalities. In addition to the telehealth modalities set forth in section 2999-cc of the public health law, reimbursement shall be made for telehealth services provided by use of telephone and other audio-only technologies.

The DoH rule expires March 21, 2022 and will then need to be adopted or extended to continue.

(copy of 12/22/2021, 10:38 a.m. email from NYS Council to all members)
Good morning,

The Notice (linked below) issued by the Department of Financial Services (DFS) appeared in today’s NY State Register.

In summary, DFS is now permanently requiring all state regulated insurers to cover audio-only telehealth services, when medically necessary.

Attached is the original regulation from September 22, 2021 which they are making permanent.  Many thanks to Marcy Savage at Reid, McNally and Savage for making an otherwise complicated Notice simple.  Now we just have to make sure the rates BH providers are reimbursed for audio-only services remain on par with reimbursement for face-to-face services.

In 12/22/21 NY State Register: https://dos.ny.gov/system/files/documents/2021/12/122221.pdf

Minimum Standards for Form, Content, and Sale of Health Insurance, Including Standards of Full and Fair Disclosure
I.D. No. DFS-38-21-00004-A Filing No. 1221
Filing Date: 2021-12-06 Effective Date: 2021-12-22

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken: Addition of sections 52.17(d) and 52.18(h) to Title 11 NYCRR.

Statutory authority: Financial Services Law, sections 202, 302; Insurance Law, sections 301, 3216, 3217, 3217-h, 3221, 4303 and 4306-g

Subject: Minimum Standards for Form, Content, and Sale of Health Insurance, Including Standards of Full and Fair Disclosure.

Purpose: To clarify application of Insurance Law Sections 3217-h and 4306-g.

Text or summary was published in the September 22, 2021 issue of the Register, I.D. No. DFS-38-21-00004-P.Final rule as compared with last published rule: No changes.

Text of rule and any required statements and analyses may be obtained from: Tobias Len, Department of Financial Services, One Commerce Plaza, Albany, NY 12257, (518) 474-8975, email: Tobias.Len@dfs.ny.gov Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The New York State Department of Financial Services (“Department”) received comments from numerous health care providers across the State. All of the comments supported the proposed regulation; no changes were requested and no concerns were raised.

Health care providers commented that telehealth plays a significant role in providing quality care to persons who need mental health services and when clinically appropriate, an audio-only visit, such as by telephone, provides essential access to care to the people of New York.

The Department received additional comments indicating that audio- only visits will expand the reach of mental health services and access to care, particularly for specific populations, such as the elderly who are not able to use video-enabled technology. The comments stated that it is essential for insureds to continue to have access to health care services through audio-only telehealth visits.