New York Issues Permanent Telehealth Regulations

On 7/11/23, new telehealth regulations went into effect in New York State. These regulations outline the circumstances in which injured workers in New York may receive telehealth services from a health care provider and the types of providers authorized to provide telehealth services. Notably missing from the proposed regulations are details on the method and manner by which employers and carriers may object to an injured worker’s use of telehealth services in circumstances where it may not be warranted.

The new permanent telehealth regulations are in Section 325-1.26 of Title 12 of the NYCRR. Telehealth was at one time limited to rural or remote communities; however, since the COVID-19 pandemic, telehealth has been more widely embraced. The New York Workers’ Compensation Board adopted emergency regulations during the pandemic to allow for expanded use of telehealth. The new permanent regulations do not simply make the old emergency regulations permanent. The emergency regulations provided more latitude to providers in the use of telehealth services. The new regulations limit the use of telehealth depending on the type of provider and the phase of the claimant’s injury.

Certain providers may not provide telehealth services at all. These include: chiropractors, acupuncturists, physical therapists, and occupational therapists. This makes sense, as the treatment modalities offered by these providers are “hands-on” and, presently, the best clinical practice for these providers involve in-person visits.

Physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers are permitted to provide telehealth services to claimant via two-way audio or audio and visual communication subject to limitations depending on the care provided and the phase of injury. Additionally, those providers using telehealth must be able to meet the claimant at the provider's office within a reasonable travel time and distance from the claimant's residence.

The regulations divide the phases of a claimant’s injury into acute/sub-acute, chronic, and maximum medical improvement (“MMI”). The acute/sub-acute phase of injury is defined as within the first three months following the date of injury. Use of telehealth during the acute/sub-acute phase is at the clinical discretion of the treating provider, except that at least every third visit must be in person. 

After three months from the date of injury is considered the “chronic” phase of injury under these regulations. During the chronic phase of injury, the provider is permitted to use telehealth at their discretion except that there must be an in person visit at least every three months or until the provider feels that the claimant has reached maximum medical improvement.

Once the treating provider feels that the claimant has reached MMI, further telehealth visits may be at the provider’s clinical discretion except that there must be an in-person visit by the providers at least annually.

Telehealth treatment for mental health conditions by psychologists and licensed clinical social workers are treated differently under these regulations. For mental health treatment, the only limitation is that the telehealth treatment be medically appropriate and permitted under the Medical Treatment Guidelines. Mental health treatment is not subject to the phase of injury limitations noted above for physicians, podiatrists, nurse practitioners, and physician assistants. The regulations state that remote mental health treatment should be limited to those situations where there is "no benefit" to in-person services. Additionally, treating mental health professional needs to document the reason for the use of remote services for each telehealth visit. There is no indication in the regulations as to what constitutes an adequate reason for use of telehealth services for mental health treatment.

The regulations define “medically appropriate for telehealth” as where an in-person physical examination of the claimant is not needed to assess the claimant’s clinical status, need for further diagnostic testing, appropriate treatment, or to determine causal relationship of level of disability. This section of the regulations (12 NYCRR 325-1.26(c)(1) and (2)) goes on to provide factors or parameters where an in-person physical examination may or may not be necessary but note that such factors should not be used by carriers or employers as the basis for a denial of services. This implies that employers and carriers have no recourse if the provider is using telehealth in a situation where it is not warranted. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth over an in-person exam.

Moreover, the factors that address where no in-person physical exam may be necessary, 12 NYCRR 325-1.26(c)(1)(i)–(viii), are vague. For example, 12 NYCRR 325-1.26(c)(1)(i), provides that telehealth could be appropriate for management of chronic conditions where the provider has previously conducted a medically appropriate and comprehensive in person assessment of the patient and condition and is fully familiar with the applicable medical history; however, factor (i) does not provide a timeframe for when this prior in person exam might have occurred or if the specific provider conducted this exam, i.e., another treatment provider in the same office conducted the in-person exam. Also, factor (viii) provides a catch-all scenario as prescribed in the Medical Treatment Guidelines or other related Board communications; however, it is unclear what this would mean in terms of supporting a telehealth visit over that of in person.

12 NYCRR 325-1.26(c)(2)(i)-(ix) provides for the factors that would indicate the necessity of a physical exam. Notably, factor (vi) focuses on an in-person exam to address degree of disability or range of motion. Degree of disability is a basic component of medical evidence submitted to the Board. Claimants in the temporary phase of disability are required to submit medical evidence regarding degree of disability every 90 days to maintain their entitlement to benefits. It is unclear how telehealth could be useful as factor (vi) acknowledges that degree of disability and range of motion should be addressed only in an in-person exam. Further, factor (ix) provides that although causal relationship should be addressed in an in-person exam, the provider could in theory ascribe causal relationship if the provider is able to articulate in the medical record why an in-person exam was not necessary to determine causal relationship. Causal relationship is routinely addressed in the acute phase of an injury. 12 NYCRR 325-1.26(c) provides that the absence or existence of these factors should not serve as a basis of a denial by carriers, self-insured employers, or third-party administrators, but causal relationship is a viable defense routinely raised by the carrier, self-insured employers, or third-party administrators. 12 NYCRR 325-1.26(c)(2)(ix) would seem indicate that the provider may now support causal relationship with a lesser burden of proof, i.e., not the physical exam findings, but some other factor in the medical record.

Nothing in the new regulations addresses when and how an employer or carrier might deny telehealth treatment that was rendered inappropriately. This would suggest that employers and carriers have no recourse if the provider is simply opting to use telehealth. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth versus an in-person exam.

The Board acknowledged the lack of guidance in an email sent on 7/13/23. That email, entitled “Telehealth Guidance” addressed the proper method for payers to object to treatment via telehealth, in instances where the payer believes the use of telehealth was inappropriate and inconsistent with the regulation. The email provides little relief for employers and carriers who want to ensure that providers are providing telehealth services consistent with the new regulations because the email states that the fact that medical treatment was provided via telehealth cannot be the sole reason for an objection to a medical bill. Rather, the employer or carrier should instead file an RFA-2, check box “K” and request a direction for future in-person visit in accordance with the regulation, and state why the visit should not be performed via telehealth.

Even after filing the request for further action, employers and carriers should not expect much help from the Board. This is because the email also indicated that the Board would not entertain C-8.1 objections from employers and carriers who object to telehealth treatment by providers who were previously directed to provide in-person treatment. Rather, the Board stated that such providers would be subject to “administrative action.”

Only in cases where a chiropractor, acupuncturist, physical therapist, or occupational therapist provides telehealth services would the Board entertain a C-8.1 objection from an employer or carrier. We do not expect that there will be many situations where this comes up.

Finally, the regulations state that Independent Medical Examinations (“IMEs”) may be conducted via telehealth when all parties of interest consent to a telehealth examination and where the IME is not offering an opinion on permanent impairment. This may provide an opportunity for employers and carriers to secure an IME on mental health claims where it is difficult to find a psychiatrist or psychologist in the claimant's home community.

With the permanent implementation of these regulations, telehealth is here to stay. Despite the numerous requirements for providers, there is no enforcement mechanism for employers or carriers to ensure compliance with these regulations. They can only rely on the Board's promise of "administrative action." At a minimum, employers and carriers should update their processes to ensure that any telehealth visit by a chiropractor, acupuncturist, physical therapist, or occupational therapist is objected to with a C-8.1. For other providers who use telehealth inconsistent with the new regulations, employers and carriers can file an RFA-2 and request a direction that the provider provide in-person visits in the future.