In November 2022, the New York State Office of Mental Health (OMH) issued revised clinic regulations, which included refinements to current regulations and the incorporation of new provisions to bring the regulations up to date, with a current focus on engagement, best practices, and integrated programming. To reinforce the idea of a reimagined clinic model and to signal the scale of the regulatory revision, OMH has given the program model a new name—Mental Health Outpatient Treatment and Rehabilitative Services (MHOTRS).
The staff at OMH have applied much effort and expertise to creating a new framework for outpatient services and have provided guidance with respect to many issues to assist in the implementation of the changes. However, regulations cannot address every possible operational issue, and some fine-tuning is a natural part of the implementation of any regulatory reform effort of similar scale and complexity. This alert will examine the regulations and guidance pertaining to crisis service billing in OMH-licensed MHOTRS, and how a latent ambiguity surrounding a specific staffing issue has created concerns about OMIG involvement and potential take-backs.
Crisis Billing
The uncertainty involves the billing standards for crisis billing and is the result of a conflict between the regulations and initial guidance promulgated by the agency and guidance shared during the rollout of the new regulations. On June 3, 2024, during a webinar that included representatives from OMH, the New York State Office for Addiction Supports and Services, and the New York State Education Department, a participant asked a question about brief crisis intervention billing. The response was that brief crisis services must be provided by licensed clinical staff. This response appeared to be in conflict with the complete absence of such a limitation in the regulation itself, in official guidance, or in actual practice. This question has emerged: “Who is authorized to provide and bill for brief crisis services?”
From the perspective of regulatory interpretation, crisis services are included in the array of services MHOTRS programs are required to provide.i The regulations pertaining to crisis billing are found at 14 NYCRR 599.14(d)(3). Both provisions describe a three-tier model where patients are evaluated and treated with escalating intensity depending on their acuity. The three tiers are brief interventions, complex interventions, and per diem interventions. The regulation specifically requires that a member of the MHOTRS’ clinical staff be one of the two staff required for the provision of both complex and per diem interventions and that the other staff member can be a member of the nonprofessional staff. There is no similar requirement in the regulations with respect to brief crisis interventions.
The fact that there is not a specific regulatory requirement that clinicians conduct brief interventions implies that a clinician is not required. The specific operational circumstances here require the same conclusion. In an example of a continuum of care in action, the crisis services in general are designed to provide resources proportionate to need and acuity. This is a natural progression from nonprofessional staff conducting brief interventions to a clinician joining the evaluation for patients in need of more complex interventions. The contrary interpretation—that a clinician does brief interventions and a nonprofessional joins the evaluation for more acute patients—seems backwards.
Current Practice
While not a scientific survey, discussions with a number of MHOTRS programs confirms that the common practice is to allow nonprofessional staff to perform brief interventions—essentially a stabilization and triage function—and then involve clinicians in those instances where greater evaluation or a more complex treatment response is necessary. This approach comports with the principle of allocating resources appropriate and proportionate to need and acuity and is an integral part of every program’s staffing plan and budget. A requirement that clinicians conduct brief crisis interventions would be a critical blow to many providers, who would face fiscal challenges as well as the immense challenge of recruiting additional clinicians.
Potential Risk
When the fog clears on this issue, if OMH decides that a clinician is required for brief crisis billing, many MHOTRS providers will technically be out of compliance and theoretically subject to sanctions by OMH or OMIG, such as a take-back or recoupment. If there is such a decision, and a clarification is made by OMH, it is reasonable to anticipate that the requirement will be applied prospectively—but that remains an unknown.
Looking Forward
There have been reports of discussions within OMH around this issue and that, after internal review, new guidance will be available. It is reasonable and appropriate that OMH is taking a deliberative approach and working on a resolution. Possible resolutions include:
- Requiring clinicians to conduct and bill for brief interventions. This result would cause much tumult and would necessarily require an implementation period to allow providers to deal with the significant consequences.
- Allowing nonprofessional MHOTRS staff to continue conducting and billing for brief interventions. This result would maintain the operational status quo for providers while eliminating uncertainty about future fiscal liabilities.
- Allowing nonprofessionals to conduct brief interventions and adding requirements with respect to training and limitations with respect to which nonprofessional staff, if any, might be excluded from providing those services. In this scenario, any new mandates would need to be prospective, would need to take into account training already routinely provided, and more.
MHOTRS providers should be aware of the fiscal risks involved with this problem, anticipate a clarifying response from OMH, and understand the consequences attached to the different potential outcomes.
If you have any questions regarding the content of this alert, please contact Keith Brennan, of counsel, at kbrennan@barclaydamon.com, or another member of the firm’s Health & Human Services Providers or Health Care Controversies Teams.
iSee 14 NYCRR 599.8.