New York Updates Definition of Telehealth to Include “Audio-Only” Communications

June 18, 2020

By: Craig W. Anderson and John F. Darling

On June 17, 2020, Gov. Andrew Cuomo signed into law Senate Bill Number S8416. The purpose of this bill was “to expand telehealth services to allow for audio-only or video-only communication, and to allow for such services to be eligible for reimbursement.” 

With this law, the definition of “telehealth” under New York’s Public Health Law will include four general modalities by which telehealth providers can deliver appropriate “health care services.” Specifically, PHL § 2999-cc(4) now includes the modalities of:

  1. telemedicine;
  2. store and forward technology;
  3. remote patient monitoring; and
  4. audio-only telephone communications. 

Unlike the other modalities listed, the statute does not include a clear definition of what constitutes reimbursable “audio-only telephone communications,” though the communication would still need to be one which constitutes “assessment, diagnosis, consultation, treatment, education, care management and/or self-management” of the patient. 

Providers should be careful to note that the change is not currently a complete allowance on the use of audio-only telephone communications in all contexts. Significantly, the law leaves discretion to the Commissioner of Health to create potential restrictions on the use of audio-only telephone communications where the services are provided under/through Medicaid or New York’s Child Health Insurance Plan. Permissibility would also be contingent on federal financial participation. 

Finally, it is also worth noting that the enactment of this law brings changes to PHL § 2999-ee, regarding the “increased application of telehealth.” This section gives certain authority to the Commissioner of Health to specify in future regulations additionally modalities for telehealth. As of yesterday, the Commissioner will have authority to consider “video-only” telephone communications, which may bring additional lasting changes for to services for patients. 

At its core, the incorporation of these changes into law appears to represent a more permanent change to the definition of telehealth and potential reimbursement, as opposed to those changes that were made on a more temporary basis by governor’s executive orders and the emergency actions taken by OMH, OPWDD, DOH and OASAS. This recent legislation is also recognition of the need for and efficacy of telehealth services, especially in times of public health emergencies. 

Should you have any questions on this or any related guidance, please feel free to contact any of the attorneys in our Health Care and practice for additional information.