On October 29, 2021, the Pennsylvania Department of Human Services, Office of Mental Health & Substance Abuse Services (OMHSAS), issued Frequently Asked Questions (FAQs) to clarify its recently revised Behavioral Health Telehealth Policy Guidance. In addition to issuing the FAQs, OMHSAS reminded providers that when PA Act 73 of 2021 sunsets (currently anticipated to be March 31, 2022), providers will need to have an approved waiver in their possession to continue to provide certain behavioral health services by telehealth. PA Act 73 of 2021 extended regulatory waivers granted in response to the COVID-19 emergency without requiring providers to submit and be in possession of an approved waiver request.
Providers whose telehealth services will be impacted by the sunset of PA Act 73 of 2021 include providers that offer “audio-only” outpatient psychiatric services in psychiatric outpatient clinics, partial hospitalization outpatient facilities, and mobile mental health treatment services, and providers that offer “audio-only” outpatient drug and alcohol clinic services. These providers will need to submit and obtain a waiver to continue to provide these services after March 31, 2022, or the day after regulatory suspensions are lifted, whichever is later. Similarly, providers that provide mental health intensive case management services will not be able to use verbal consent/verification after March 31, 2022, or the day after regulatory suspensions are lifted, whichever is later, without obtaining a waiver.
The FAQs provide the following clarifying guidance to OMHSAS’ Behavioral Health Telehealth Policy:
- Provider agencies must continue to ensure that sufficient office and clinic hours are available to meet the needs of individuals receiving services who do not want to use telehealth, or who cannot use telehealth.
- HealthChoices Primary Contractors who want to deliver telehealth services to an individual who will be receiving services beyond 45 miles/60 minutes (whichever is greater) from the closest facility location where the individual would be receiving the service if it was not being delivered by telehealth, must submit an exception request on a specified form attached to OMHSAS-21-09.
- Use of telehealth platform without video turned on constitutes “audio-only” service delivery. The fact that the underlying technology is capable of a video component, but the video component is not used in the communication, does not change the fact that service was delivered “audio-only.”
- Text messaging is not permitted in either telehealth or “audio-only” service delivery.
- Where it is clinically appropriate to do so, unlicensed mental health staff such as, but not limited to, unlicensed master’s level therapists, mental health targeted case managers, mental health certified peer specialists, certified recovery specialists, and drug and alcohol counselors, may deliver services through telehealth.
- Staff of licensed provider agencies may deliver services outside the licensed facility, such as in a home office, if the provider agency has policies in place to ensure that standards of care and privacy are maintained.
- As long as the provider organization has sufficient staff to provide services in-person when it is requested or clinically required, the provider may allow some of its practitioners to only deliver services through telehealth.
- OMHSAS-21-09 does not include any guidance on supervision requirements.
- If a minor who is 14 years of age or older does not consent to the involvement of a caregiver during group services when a caregiver is needed during the provision of such group services, consent may be obtained from the minor’s parent or legal guardian.
- Peer Support Services provided using “audio-only” service delivery is limited to 25% or less of total service time provided per individual per calendar year for the purpose of assisting the individual in meeting the goals in the Individual Service Plan. Audio-only service delivery in excess of 25% can only be used “when the individual served does not have access to video capability or for an urgent medical situation.”
- OMHSAS recognizes the current enforcement discretion from HHS OCR and any OMHSAS requirement to comply with HIPAA includes current and ongoing HHS OCR guidance on HIPAA enforcement.
OMHSAS has stated that it will immediately begin to process requests for regulatory waivers to avoid a last minute rush.