Comments on Proposed Telepsychiatry Rules from the New York Office of Mental Health

The full text of the proposed rules can be found here: http://docs.dos.ny.gov/info/register/2016/april13/pdf/rulemaking.pdf

I applaud The New York Office of Mental Health for recognizing the growth of telepsychiatry and for taking steps to define standards for appropriate telepsychiatry in its New York codes and regulations.

Last year, Governor Cuomo signed into law legislation that allowed reimbursement for telemedicine and thus acknowledged it as an acceptable solution for increasing access to care. This legislation came into effect January 1, 2016.

Telepsychiatry is a type of telemedicine. It is a rapidly growing medium of care and proven tool for extending the capacity of psychiatry providers. The American Medical Association, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry and many other professional boards support telepsychiatry as an effective treatment modality.

I have practiced telepsychiatry with a wide variety of consumer populations for the past 17 years. My organization, InSight Telepsychiatry, employs a team of 220+ telepsychiatry providers who work in settings across the continuum of care in 26 states. With this experience I am well informed on how telepsychiatry is being used and regulated across the country.

I have reviewed OMH’s proposed telepsychiatry regulations and noticed several areas that need additional clarifications, revisions or consideration. As they are written now, the proposed regulations would put New York behind other states in terms of telepsychiatry and would limit a solution that increases access to timely, quality care to New York residents. The proposed regulation would significantly limit the impact of the law enacted by Governor Cuomo.

Based on my industry experience, the proposed regulations do not properly reflect how telepsychiatry is being used by a large number of telepsychiatry providers throughout the nation. They also do not contemplate trends in telepsychiatry that extend care to new and more convenient locations for both the provider and the consumer. Additionally, the proposed law limits the provision of telepsychiatry services to physicians and nurse practitioners and excludes other types of providers.

Areas that require review in the proposed regulation include the below:

Section 596.3 Applicability

  • This section excludes (ACT) Assertive Community Treatment Programs from being able to utilize telepsychiatry services.
  • Telepsychiatry has actually been used effectively in ACT programs for several years. My organization runs a successful ACT program that utilizes telepsychiatry providers as part of the interdisciplinary and collaborative care team both in an outpatient setting and in individuals’ homes using 4g enabled iPads. This model of telepsychiatry has been very successful and allows individuals to get wrap around treatment wherever they are at from a care team that includes an often hard-to-come by psychiatrists. As the regulations are currently written, this type of program would be impossible in Delaware, so I recommend a revision.

Section 596.4 Definitions

  • (b) The definition of encounter suggests that there need to be a provider present at the patient’s location via a telepresenter.
  • While it is certainly appropriate and even necessary to have a provider present to facilitate a telepsychiatry encounter in some instances, research and trends in telepsychiatry show that this is not always the case.  In-home, direct-to-consumer telepsychiatry is being used more and more these days and is absolutely an appropriate form of care for non-acute issues.

Section 596.5 Approval to Utilize Telepsychiatry Services

  • Requires the patient receiving telepsychiatry services to be located at an originating spoke site that is licensed by OMH
  • This requirement does not contemplate many of the locations that telepsychiatry is currently being used. For example, correctional telepsychiatry is one of the largest applications of telepsychiatry to date and a modality that makes financial and logistical sense. In-home telepsychiatry is also common. A number of mobile crisis units throughout the country are being equipped with technology that allows them to connect to telepsychiatry providers wherever they are. OMH should not limit the location that telepsychiatry originates to only locations licensed by OMH.
  • (b) Requires a provider to obtain prior written approval by OMH before utilizing telepsychiatry services
  • This requirement treats telepsychiatry as a something different and sub-par from psychiatry. Evidence shows that telepsychiatry offers individuals the same level of care as in-person services; it just does so through a different modality. There is no reason to add this extra layer of approval to the delivery of mental health care.
  • (d) OMH may make on site visits to either or both sites before granting approval
  • This requirement adds an unnecessary encumbrance to care delivery. Many telepsychiatry providers deliver services from their home offices. Additionally, many individuals receive telepsychiatry from settings beyond those defined as an approved spoke site by this current OMH policy (corrections, schools, homes). To do on site visits to the locations before granting approval for telepsychiatry to occur is unrealistic and limiting.

Section 596.6 Requirements for Telepsychiatry Services

  • (a)(1)(v) Requires that the distant/hub site practitioner to be enrolled in NY Medicaid
  • This requirement suggests that telepsychiatry is a solution only for serving the underserved rather than being a care modality that is used by many providers who are interested in serving a diverse patient-base. Medicaid is, of course, not the only payer in New York and certain providers may make the decision to practice telepsychiatry without choosing to work with a NY Medicaid patient base.
  • (a)(5) Requires that it be noted in a patient’s medical record that the services were provided via telepsychiatry including the start and end time of the encounter
  • This requirement goes above and beyond traditional in person requirements and lays an unnecessary expectation that telepsychiatry providers must do more to document a telepsychiatry encounter than a regular encounter, when really the “meat” of the encounter is no different. 29 States mandate that telepsychiatry encounters are reimbursed the same as in-person sessions showing that the majority of the country treats remote, televideo sessions as equitable to in-person sessions. Adding this additional requirement is an unnecessary burden on telepsychiatry providers.
  • (a)(10)(ii) Telepsychiatry can only be used for consultation on involuntary commitment decisions
  • Many telepsychiatry programs across the nation – especially in hospitals- actually give telepsychiatry providers full privileges to evaluate, assess, prescribe and commit as appropriate. These telepsychiatry providers become fully licensed, credentialed and privileged at an organization to provide treatment in the same way an onsite prescriber would. The language as it is currently written excludes this type of direct care and instead limits telepsychiatry to consultation.
  • (b)(6) Would only allow physicians using telepsychiatry to consult for evaluations, examinations, and assessments in pursuit of involuntary commitment orders.  Telepsychiatry providers would be unable to complete a first evaluation for involuntary commitment orders themselves.
  • This section, again, excludes a common usage of telepsychiatry. I, like many telepsychiatry providers, have often done initial evaluations for involuntary commitment orders in a number of states throughout the nation. A remote telepsychiatry providers can effectively evaluate an individual and their collateral in order to make an appropriate disposition decision, in fact- in my experience, programs find that having a telepsychiatry provider available to make or rescind commitment decisions reduces ED boarding times, reduces inappropriate commitments and helps to expediently move individuals to the least restrictive and most appropriately level of care.

Overall: Definition of Telepsychiatry Provider

  • The regulation names a practitioner as a physician or a nurse practitioner. Other levels of providers are only discussed in the section about needing a telepresenter with a minor patient.
  • There are opportunities for telehealth to be a tool for all types of behavioral health providers- both prescribers and non-prescribers. Research shows that therapy, counseling and other non-prescribing behavioral health services are effective via telehealth. This is also a rapidly growing area. Having language that limits which types of providers can use telehealth is unnecessarily prohibitive.

In conclusion, it is, of course, important to distinguish providers who are practicing good telepsychiatry from bad, but the language as it is written now, significantly limits providers who are delivering telepsychiatry according to common practice and professional standards. As New York’s OMH looks to adopt these new telepsychiatry regulations, I implore them to reevaluate its language around the above points so as to stay up to speed with other states and standards on how telepsychiatry should be delivered now and in the future.

Jim Varrell, MD

Medical Director

 

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