Designated Services (Acupuncture and Telepractice)

NY-ADR

9/25/19 N.Y. St. Reg. ASA-39-19-00004-P

NEW YORK STATE REGISTER

VOLUME XLI, ISSUE 39

September 25, 2019

RULE MAKING ACTIVITIES

OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

I.D No. ASA-39-19-00004-P

Designated Services (Acupuncture and Telepractice)

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

Proposed Action:

Amendment of Part 830 of Title 14 NYCRR. This rule is proposed pursuant to section 207(3), 5-Year Review of Existing Rules.

Statutory authority:

Mental Hygiene Law, sections 1.03(6), 19.07(e), 19.09(b), 19.21(d), 32.01, 32.05(b), 32.07(a), 32.09(b); Education Law, art. 160; Public Health Law, section 3351 and art. 29-G; 21 USC section 829

Subject:

Designated services (acupuncture and telepractice).

Purpose:

To identify standards for designation to provide acupuncture or telepractice services.

Text of proposed rule:

Subdivision (f) of § 830.3 is amended to read as follows:

(f) For purposes of Telepractice, the following terms shall have the following meanings:

(1) “Distant site” or “hub site” means the site at which the practitioner delivering the service is located at the time the service is provided via the interactive telecommunications system.

(2) “Originating site” or “spoke site” means the site at which the patient is located at the time the service is being provided via the interactive telecommunications system, which may include the patient’s place of residence.

Paragraph (5) of subdivision (a) of § 830.5 is amended to read as follows:

(5) An Office certified program must obtain prior written authorization from the Office pursuant to this section before implementing telepractice services; services shall be limited to those authorized and approved by the Office and may include the following:

(i) Admission assessments, direct transfers;

(ii) psycho-social evaluations and mental health consultations;

(iii) medication assisted treatment prescribing and monitoring;

(iv) counseling (individual and group);

(v) other services as approved by the Office.

Text of proposed rule and any required statements and analyses may be obtained from:

Carmelita Cruz, NYS OASAS, 1450 Western Ave, Albany, NY 12203, (518) 485-2312, email: carmelita.cruz@oasas.ny.gov

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

60 days after publication of this notice.

Reasoned Justification for Modification of the Rule

The proposed rule amends Part 830 regarding the designation of OASAS certified providers for approval to provide acupuncture or telepractice services. Amendments are made in accordance with NYS Medicaid guidelines, and conformity with OMH tele-mental health service provision, to allow for OASAS services to be delivered via telepractice in a client’s home and to allow for the provision of counseling via telepractice. This rulemaking proposal has been reviewed and approved (August 15, 2019) by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments.

Regulatory Impact Statement

1. Statutory Authority:

(a) Section 1.03(6) of the Mental Hygiene Law defines “facility” as any place in which services for the mentally disabled are provided.

(b) Section 19.07(e) of the Mental Hygiene Law authorizes the commissioner to adopt standards including necessary rules and regulations pertaining to chemical dependence services.

(c) Section 19.09(b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(d) Section 19.21(d) of the MHL requires the Office to establish reasonable performance standards for providers of services certified by the Office.

(e) Section 32.01 of the Mental Hygiene Law authorizes the commissioner to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.

(f) Section 32.05(b) of the MHL provides that a controlled substance designated by the commissioner of the New York State Department of Health (DOH) as appropriate for such use may be used by a physician to treat a chemically dependent individual pursuant to section 32.09(b) of the MHL.

(g) Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.

(h) Section 32.09(b) of the MHL provides that the commissioner may, once a controlled substance is approved by the commissioner of DOH as appropriate for such use, authorize the use of such controlled substance in treating a chemically dependent individual.

(i) Article 160 of the Education Law provides for the licensure or certification of acupuncturists and limited practice of unlicensed persons in treatment of substance use disorder.

(j) Article 29-G of the Public Health Law relates to reimbursement for health care services delivered via “telehealth.”

(k) Section 3351 of the Public Health Law authorizes the prescribing or dispensing of controlled substances for the purposes of substance use disorder treatment.

(l) Section 829 of Title 21 of the United States Code governs the law concerning internet prescribing of controlled substances.

2. Legislative Objectives: The legislature has authorized OASAS to establish standards and regulations governing the provision of addiction treatment services and the certification of providers. These amendments align OASAS and Office of Mental Health regulations regarding provision of telehealth services and are in line with Department of Health/Medicaid regulations that allow for services to be provided to a patient in their home.

3. Needs and Benefits: By conforming agency regulations for the provision of services via telehealth, it will be easier for providers of services, especially integrated providers and providers with multiple licenses, to implement telehealth across their service system by having uniform rules and regulations. These amendments conform with recent updates and amendments from the Office of Mental Health and the recent Medicaid Update issued by the Department of Health. These services are currently allowed within the OASAS system but providers must undertake additional administrative burdens to apply for authorization and approval via a waiver process.

4. Costs: No additional administrative costs to the regulated entities, State, local governments, or agency are anticipated.

5. Paperwork: There is no additional paperwork beyond what is already required. In fact, the proposal will reduce the administrative burden on entities wishing to provide these services.

6. Local Government Mandates: There are no new local government mandates.

7. Duplication: This proposed rule does not duplicate, overlap, or conflict with any State or federal statute or rule.

8. Alternatives: The alternative is to leave the current system in place – which will result in less conformity of agency regulations and a larger administrative burden for providers to seek OASAS authorization and approval for provision of services.

9. Federal Standards: This regulation does not conflict with federal standards.

10. Compliance Schedule: This rulemaking will be effective upon publication of a Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

OASAS has determined that the rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments because these services may already be authorized by submitting a waiver to the Office. This rulemaking proposal has been reviewed and approved (August 15, 2019) by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments.

Rural Area Flexibility Analysis

OASAS has determined that the rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas because these services may already be authorized by submitting a waiver to the Office. This rulemaking proposal has been reviewed and approved (August 15, 2019) by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments.

Job Impact Statement

OASAS is not submitting a Job Impact Statement for this rulemaking. OASAS does not anticipate a substantial adverse impact on jobs and employment opportunities because these services may already be authorized by submitting a waiver to the Office. This rulemaking proposal has been reviewed and approved (August 15, 2019) by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments.