1. (1) The distant/hub site telemental health practitioner must:

   1. (i) possess a current, valid license, permit, or limited permit to practice in New York State;
   2. (ii) directly render the telemental health service;
   3. (iii) abide by the laws and regulations of the State of New York including the New York State Mental Hygiene Law and any other law, regulation, or policy that governs the assessment or treatment service being provided;
   4. (iv) adhere to the same laws, rules, and regulations and exercise the same standards of care and competencies required for in-house delivered services;
   5. (v) utilize evidence-based telehealth or telemental health practice guidelines and standards of practice, to the degree they are available, to ensure recipient safety, quality of care, and positive outcomes; and

   6. (vi) deliver services from a secure site/location which ensures the minimum standards for privacy for recipient-clinician interaction are met as follows:

      1. (a) psychiatrists and nurse practitioners in psychiatry may deliver services from a site located within the United States, including from a space in a place of residence approved by the Office of Mental Health; and
      2. (b) mental health practitioners may deliver services from a site located within the State of New York, including from a space in a place of residence approved by the Office of Mental Health.
2. (2) The distant/hub provider and originating/spoke site provider of service must not be terminated, suspended, or barred from the Medicaid or Medicare program.
3. (3) If the originating/spoke site is a hospital, the telemental health practitioner at the distant/hub site must be credentialed and privileged by such hospital, as necessary and consistent with applicable accreditation standards.

4. (4) Telemental health services must be rendered using telemental health technologies. A provider of services approved to offer telemental health services shall adopt and implement technology in a manner that supports the standard of care to deliver the services, the features of which include at least:

   1. (i) the technology and equipment utilized in the provision of telemental health services must be of sufficient quality, size, resolution and clarity such that the provider of services can safely and effectively provide the telemental health services;
   2. (ii) the technology and equipment utilized in the provision of telemental health services must be compliant with the Health Insurance Portability and Accountability Act (HIPAA).
5. (5) Telemental health practitioners must verify the identity of the recipient before commencing each telemental health encounter.
6. (6) A notation must be made in the clinical record that indicates that the service was provided via telemental health and which specifies the time the service was started and the time it ended.
7. (7) Telemental health services provided to recipients under age 18 may include staff that are qualified mental health professionals, as such term is defined in this Part, or other appropriate staff of the originating/spoke site in the room with the recipient. Such determinations shall be clinically based, consistent with clinical guidelines issued by the office.
8. (8) For the purposes of this Part, telemental health services shall be considered face-to-face contacts when the service is delivered in accordance with the provisions of the plan approved by the office pursuant to section 596.5 of this Part.
9. (9) Culturally competent interpreter services shall be provided in the recipient’s preferred language when the recipient and distant/hub telemental health practitioners do not speak the same language.
10. (10) The telemental health practitioner providing telemental health services at a distant/hub site shall be considered an active part of the recipient’s treatment team and shall be available for discussion of the case or for interviewing family members and others, as the case may require. Such telemental health practitioner shall prepare appropriate progress notes and securely forward them to the originating/spoke provider as a condition of reimbursement.

11. (11) Telemental health services shall not be used:

    1. (i) for purposes of ordering medication over objection; or
    2. (ii) restraint or seclusion, as defined in section 526.4 of this Title; or

    3. (iii) to satisfy any specific statutory examination, evaluation or assessment requirement necessary for the involuntary removal from the community, or involuntary retention in a hospital pursuant to any of the provisions of article 9 of the Mental Hygiene Law. Physicians conducting such examinations, evaluations or assessments may only utilize telemental health services on a consultative basis.

       (b) Protocols and procedures.

       A provider of services approved to utilize telemental health services must have written protocols and procedures that address the following:

12. (1) Initial assessment. Each recipient for whom the provision of telemental health services may be offered must receive an initial assessment in person to determine whether the telemental health modality is appropriate, given the recipient’s treatment needs.

13. (2) Informed consent. Protocols must afford persons receiving services the opportunity to provide informed consent to participate in any services utilizing telemental health services, including the right to refuse these services and to be apprised of the alternatives to telemental health services, including any delays in service, need to travel, or risks associated with not having the services provided by telemental health, and risks associated with receiving telemental health services in an off-site location. Such informed consent may be incorporated into the informed consent process for in-person care, or a separate informed consent process for telemental health services may be developed and used.

    1. (i) The recipient must be provided with basic information about telemental health services, including both benefits and risks, and shall provide his or her informed consent to participate in services utilizing this technology. For recipients under age 18 for whom informed consent cannot be obtained pursuant to Mental Hygiene Law section 33.21, such information shall be shared with and informed consent obtained from the recipient’s parent or guardian.
    2. (ii) Recipients, or a minor recipient’s parent or guardian, shall be informed how to verify a telemental health practitioner’s professional license.
    3. (iii) The recipient has the right to refuse to participate in telemental health services, in which case evaluations must be conducted in-person by appropriate clinicians.
    4. (iv) Telemental health sessions shall not be recorded without the recipient’s consent.

14. (3) Confidentiality. Protocols and procedures must be maintained as required by Mental Hygiene Law section 33.13 and HIPAA at 45 CFR parts 160 and 164 and shall apply to both the originating/spoke site and the distant/hub site. Such protocols shall ensure that:

    1. (i) all current confidentiality requirements and protections that apply to written clinical/medical records shall apply to services delivered by telemental health technologies, including the actual transmission of the service, any recordings made during the time of transmission, and any other electronic records;
    2. (ii) the spaces occupied by the recipient at the originating/spoke site and the practitioner at the distant/hub site must meet the minimum standards for privacy expected for recipient-clinician interaction at a single Office of Mental Health licensed location.
15. (4) Security of electronic transmission. All telemental health services must be performed on dedicated secure transmission linkages that meet minimum Federal and State requirements, including but not limited to 45 C.F.R. parts 160 and 164 (HIPAA Security Rules), and which are consistent with guidelines of the office. Transmissions must employ acceptable authentication and identification procedures by both the sender and the receiver.
16. (5) Psychiatric emergencies. Protocols must address psychiatric emergencies, which may override the right to confidentiality to require the presence of others if, for instance, an individual receiving services is suicidal, homicidal, dissociated, or acutely psychotic during the evaluation or treatment service. In general this individual should not be managed via telemental health without qualified mental health professionals present at the originating/spoke site, unless there are no adequate alternatives and immediate intervention is deemed essential for recipient safety. All telemental health service sites must have a written procedure detailing the availability of in-person assessments by a physician or nurse practitioner in an emergency situation.
17. (6) Prescribing medications via telemental health. Procedures for prescribing medications through telemental health must be identified and must be in accordance with applicable New York State and Federal regulations, including but not limited to the Federal Ryan Haight Act (21 U.S.C. section 823(f)), New York State Education Law sections 6902(3)(a)(ii), 7606, 7708, and 8407; and regulations of the New York State Department of Health at 10 NYCRR Part 80.
18. (7) Procedures for first evaluations for involuntary commitments. Under New York State law, physicians must conduct first evaluations for involuntary commitments of individuals. If these evaluators want additional consultation before rendering their decision, they may obtain consultation from psychiatrists via telemental health services. The responsibility for signing the commitment papers remains with the physician who actually conducted the evaluation of the individual at the facility, not the psychiatrist who provided the telemental health consultation.

19. (8) Recipient rights. Recipient rights policies must ensure that each individual receiving telemental health services:

    1. (i) is informed and made aware of the role and license information of the telemental health practitioner at the distant/hub site, as well as qualified mental health professional staff at the originating/spoke site who are responsible for follow-up or on-going care;
    2. (ii) is informed and made aware of the location of the distant/hub site and all questions regarding the equipment, the technology, etc., are addressed;
    3. (iii) has the right to have appropriately trained staff immediately available to him/her while receiving the telemental health service to attend to emergencies or other needs;
    4. (iv) has the right to be informed of all parties who will be present at each end of the telemental health transmission; and
    5. (v) if the recipient is a minor, the recipient and his or her parent or guardian shall be given the opportunity to provide input regarding who will be in the room with the recipient when telemental health services are provided.
20. (9) Quality of care. All telemental health service sites shall have established written quality of care protocols to ensure that the services meet the requirements of New York State and Federal laws and established recipient care standards. A review of telemental health services shall be included in the provider’s quality management process.
21. (10) Contingency Plan. All telemental health service sites must have a written procedure detailing the contingency plan when there is a failure of the transmission or other technical difficulties that render the service undeliverable.

22. (11) Ownership and maintenance of records.

    1. (i) The program in which the recipient is admitted shall be responsible for obtaining and maintaining a complete clinical record as if the recipient were seen face-to-face at such site.

    2. (ii) The distant/hub site shall maintain copies of all documentation completed by the distant/hub telemental health practitioner unless the telemental health practitioner records the information directly within the originating/spoke site’s electronic medical record system.

       (c) Guidelines of the office.

       The office shall develop guidelines to assist providers in complying with the provisions of this Part and in achieving treatment goals through the use of telemental health services. The office shall post such guidelines on its public website.

(a) General requirements.