On August 31, 2022, the New York State Department of Health (“DOH”) published an Emergency Rule Making related to Telehealth Services (see below) in the New York State Register. The Effective Date of the Emergency Rulemaking was August 16, 2022. This coincides with the date that the Department of Health provided the Emergency Rule Making to the New York State Department of State for filing in the State Register.

The 60 day comment period to the new Part 538 starts on August 31st, when it was published in the State Register. The Emergency Adoption is stated to expire on November 13, 2022.

Please contact Matthew Babcock at mbabcock@harrisbeach.com if you would like to engage Harris Beach to obtain more information on this topic or to comment.

The following is taken directly from the New York State Register and includes the text of the Emergency Rule Making:

Finding of necessity for emergency rule: Preservation of public health.

Specific reasons underlying the finding of necessity: These regulations must be promulgated on an emergency basis to continue certain telehealth flexibilities that were authorized during the State public health emergency and to avoid a disruption in certain health care services provided to Medicaid enrollees once the public health emergency ends. During the public health emergency, pursuant to Executive Orders which waived certain New York State laws and regulatory requirements related to telehealth, all eligible Medicaid providers were authorized to utilize telehealth, including audio-only telephone or other audio-only technology. This regulation is required to authorize Medicaid providers to continue to provide services pursuant to the same flexibilities afforded during the public health emergency until permanent regulations are able to be promulgated.

Subject: Telehealth Services.

Purpose: To ensure continuity of care of telehealth services provided to Medicaid enrollees.

Text of emergency rule: PART 538 State Reimbursement for Telehealth Services

Section 538.1 Authorized providers. For purposes of medical assistance reimbursement, 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.