As discussed in a prior blog post, effective June 25, 2021, New York Governor Andrew Cuomo issued Executive Order 210, which officially declared the end of the New York State of Emergency caused by the COVID-19 pandemic. As a result, the New York emergency telehealth waivers have expired.  These telehealth waivers had previously allowed many digital health companies and health systems to utilize certain flexibilities related to the methods of allowable telehealth technologies and the use of out-of-state providers to expand services and to cover understaffed departments.

In response to the Governor’s announcement, the New York State Department of Health (“NYS DOH”) issued guidance extending the expansion for the ability of all Medicaid providers in all situations to use a wide variety of communication methods to deliver services remotely during the remainder of the federally-declared COVID-19 Public Health Emergency (“PHE”). Note that this guidance does not impact or provide additional flexibilities to non-Medicaid providers and, as discussed in our prior blog post, the New York State Education Department has only commented stating that given the expiration of the New York COVID-19 waivers, “professionals should exercise due diligence and good faith efforts to return to compliance with all Title VIII statutory and regulatory requirements without delay.”

Below is a summary of the most significant aspects of the NYS DOH guidance:

  1. Continued Reimbursement of Telephonic Encounters

NYS Medicaid will continue to reimburse telephonic assessment, monitoring, and Evaluation and Management (E&M) services provided to members in cases where face-to-face visits may not be recommended and it is appropriate for the member to be evaluated and managed by telephone. Telephonic communication that is deemed medically necessary will be covered when provided by any qualified practitioner or service provider.

  1. Expansion of Definition of Telehealth

NYS DOH continued New York’s trend towards broader use of audio-only telephone communications, expanding the definition of telehealth in the guidance to include two-way electronic audio-only conversations, in addition to telemedicine, store and forward and remote patient monitoring.  An important distinction was drawn between telehealth and telemedicine, which is used in the guidance to describe two-way electronic audio-visual communication.  The guidance also continued the trend of reducing barriers related to the site of service, both for the patient and the provider, as the originating site (where the patient is located) can be anywhere the member is located, including the member’s home, and the distant site (where the telehealth provider is located) can be any site within a U.S. state or territory, including FQHCs and the provider’s home.

  1. More Providers Deemed Eligible to Provide Telehealth, So Long as Standards are Met

The guidance also maintained a more expansive view on which providers are authorized to provide telehealth services, stating that during the PHE, any provider authorized to deliver Medicaid billable services may utilize telehealth so long as the services are appropriate for telehealth and within the provider’s scope of practice.  As is a prerequisite for the delivery of telehealth services in many states, the guidance makes clear that providers must confirm the member’s identity and provide the member with basic information about the services to be delivered via telehealth.  In addition, all providers are required to take reasonable steps to ensure privacy during all patient-provider interactions, including via telehealth.

The guidance also includes detailed billing rules for telehealth services.  The guidance will remain in effect for the remainder of the federal PHE or until the issuance of subsequent NYS DOH guidance, whichever comes first; there has been no indication to date as to the timing of the expiration of the federal PHE, meaning that CMS’s telehealth related 1135 waivers remain in effect.  We will continue to monitor the ever-shifting telehealth landscape, as state legislatures across the country continue to consider expanding access to telemedicine.  Telehealth is also being considered at a Federal level, as both the Senate and House of Representatives have bills under consideration to expand the use of audio-only telehealth, specifically to address serving the needs of rural communities.  West Virginia Senator Joe Manchin introduced the Protecting Rural Telehealth Access Act (S. 1988) on June 9, 2021 and Missouri Representative Jason Smith introduced the Permanency for Audio-Only Telehealth Act (H.R. 3447) on May 20, 2021.  Both bills seek to permit Medicare reimbursement for audio-only telehealth.

Photo of Jason Madden Jason Madden

Jason Madden is an associate in the Health Care Department. His practice focuses on representing health care clients, including hospitals, physician groups, not-for-profit corporations, private equity firms and other financial institutions. Jason provides legal advice on a wide range of regulatory, transactional and…

Jason Madden is an associate in the Health Care Department. His practice focuses on representing health care clients, including hospitals, physician groups, not-for-profit corporations, private equity firms and other financial institutions. Jason provides legal advice on a wide range of regulatory, transactional and litigation matters, including fraud and abuse compliance; HIPAA and data privacy; mergers, acquisitions and financings; and general corporate and business planning.

In addition, Jason actively participates in pro bono matters, representing not-for-profit organizations on a variety of matters, and is an active member of the American Health Lawyers Association (AHLA). Jason also volunteers at the Manhattan and Brooklyn Family Courts, and helped lead the Legal Aid Society’s Associate Campaign.