Kristen Marotta writes:
Recently on Fox’s HIPAA & Health Information Technology blog, we discussed the privacy and security issues arising from the growth of telemedicine, as well as the general benefits that such growth could have for recent medical graduates. Now, with more funding and attention being given to telemedicine, new physicians will have the opportunity to make a difference in rural health care and move the industry into an entirely new direction.
In New York, recent funding has been made available through the New York Office of Mental Health (OMH) to expand the use of telemedicine in the treatment of mental health patients. This new funding stream for “telepsychiatry” provides a new avenue for the practice of psychiatry in New York and provides a unique consideration for New York physicians considering the practice of psychiatry for their long-term career.
Psychiatrists or physicians considering the practice of psychiatry should familiarize themselves with the OMH’s regulations on telepsychiatry services set forth in Title 14 of the New York Code, Rules and Regulations (NYCRR), including Part 596, which recently expanded the ability of physicians to practice telepsychiatry outside of outpatient clinic settings, including between OMH-licensed sites and provider sites enrolled in New York State Medicaid. A summary of the current regulations, as well as additional guidance on telepsychiatry in New York, can be found on the OMH website. In particular, we note a comprehensive checklist and guidance published by the OMH in early 2017 regarding provider responsibilities in practicing telepsychiatry. We also note that privacy and security concerns are discussed in this checklist. Providers rendering telepsychiatry services must comply with all federal HIPAA laws and regulations, in addition to New York’s Mental Hygiene Law Section 33.13.
Due to the nature of telepsychiatry (or any type of telemedicine), it is important for providers to remember that there are two physical locations where protected health information of patients is potentially used and disclosed. For telepsychiatry in New York, the policies and procedures at the distant site must match those of the originating site exactly. In addition, both sites must meet “the minimum standards for privacy expected for patient-clinical interaction at a single Office of Mental Health licensed location.” [14 NYCRR 596.6(b)(2)(ii)]. For confidentiality purposes, when physicians practice telemedicine of any type, they should abide by the same rules as they would for written clinical medical records.
In addition to the highly technical components discussed in the OMH’s guidance, providers will also need to substantively update their policies and procedures. Two examples that providers should note are as follows. First, written protocols and procedures relating to telepsychiatry should be developed and followed. These policies and procedures should include a special provision for obtaining a patient’s informed consent before recording telepsychiatry sessions. Second, staff trainings must include the topic of telepsychiatry and technical training of telepsychiatry equipment. Staff will also need to be “immediately available” to attend to emergencies and other concerns during the patient’s actual telepsychiatry session. [14 NYCRR 596.6(b)(7)(iii).]
Stay tuned to Fox Rothschild’s Physician Law blog for updates on how developments in the practice of telemedicine in New York and other states affect physicians.
Kristen A. Marotta is an associate in the firm’s Health Law Department, based in its New York office.