COVID-19 Roundup #2: NYS Guidance for OASAS Providers

Amid the novel coronavirus (COVID-19) crisis, the NYS Office of Addiction Supports and Services (OASAS) has released multiple guidance documents to support providers and curb the virus’ spread. The following is a summary of some of the most recent, pertinent guidance documents.

Dear Provider Letter: Prevention Services

A letter to providers issued by the OASAS on March 17 reaffirmed that OASAS-funded and certified prevention providers are allowed to deliver prevention services through telepractice, including both telephonic and audiovisual means. Additionally, these prevention programs may provide telepractice services if a school district or building closes for two weeks or more, consistent with authority provided in Executive Order 202.

Providers must complete a self-attestation to provide services via telepractice. Importantly, certified prevention counseling providers should send their self-attestation to the OASAS Bureau of Certification at certification@oasas.ny.gov. Funded prevention providers should submit their self-attestation to the OASAS Prevention Bureau at prevention@oasas.ny.gov.The letter also clarifies that the self-attestation does not permit providers to bill Medicaid for services not otherwise allowable, and, therefore, prevention providers are directed to ignore the information regarding the use of specific modifiers contained in the self-attestation.

Telepractice Waiver Update #2

On March 18, the OASAS issued Telepractice Waiver Update II, which provided additional information pertaining to the telepractice waiver issued on March 9.

The OASAS clarified that, for the length of the declared disaster emergency, peer services delivered by certified recovery peer advocates (CRPAs) are considered allowable services that may be delivered by providers who have submitted the required telepractice attestation or who have been otherwise approved to deliver services via this method. Additionally, unlicensed, credentialed alcoholism and substance abuse counselor-trainees (CASAC-Ts) and limited permit holders may perform assessments, counseling, and other non-medical services using telepractice. Providers are directed to bill for peer services provided by telephone or video in the same way in which the services are usually billed. However, appropriate modifiers for telepractice (95 or GT) and Plan of Service Code (02) must be included on Medicaid claims.

The OASAS guidance also directs providers to Drug Enforcement Agency (DEA) guidance that waives face-to-face, in-person medical evaluation requirements for a patient and DEA-registered or Drug Addiction Treatment Act (DATA)-waived practitioners prior to prescribing controlled substances. Instead, a prescription can be issued as long as the practitioner and patient have had a telepractice session meeting certain requirements. Notably, audio only (telephonic) communication is insufficient.

2020-2021 Workplan and WITNYS Reporting Guidance

On March 19, the OASAS issued guidance for all certified and funded prevention programs whose services have been impacted by the COVID-19 emergency. The guidance announced that the deadline for workplans for the annual prevention workplan process that began on March 1 has been extended to May 15. Additionally, prevention performance standards for service delivery for the current prevention planning year (2019-2020) will be adjusted so providers who had to cease operations due to COVID-19 are not unfairly penalized. As outlined in the OASAS guidance, providers are required to document certain information into WITNYS for this to apply.

Workforce Reduction Guidance

On March 20, the OASAS released guidance for residential and community-based providers regarding the workforce reductions ordered by Executive Order 202.6. The guidance clarified that OASAS residential and community-based providers are considered essential businesses that are exempt from the workforce reductions. As such, these providers are expected to remain in operation. Providers are also directed to review Empire State Development guidance for more information.

Telepractice FAQs

On March 20, the OASAS released FAQs for providers pertaining to telepractice. The FAQs clarified that all OASAS-certified or otherwise authorized providers should submit a self-attestation for permission to utilize telepractice as long as the requirements for providing telepractice services are met. These requirements include:

1. Practitioner is employed by or contracted with an OASAS-certified or otherwise authorized program.
2. For medical and medication-related services, prescribing professionals are DATA 2000-waived to prescribe buprenorphine.
3. For all other services, clinical staff is required to work within their respective scope of practice.

Other pertinent information addressed in the OASAS FAQs include:

• Privacy and Confidentiality: The client and provider may be at any site that meets privacy and confidentiality standards, including a home, as long as the client is asked where they are located and if the location is private. A client’s verbal acknowledgement is enough and should be documented in the treatment record.
• Self-Attestations: Providers who have already been approved by the OASAS to provide telehealth need not complete a new self-attestation, and self-attestations are required for each agency rather than each individual provider. The self-attestation will cover all listed programs. If a provider is certified by multiple agencies, the appropriate attestation must be completed for each agency. Providers can begin to use telepractice once the self-attestation is submitted, and the auto-response generated on submission should be maintained as proof that authorization was received.
• Informed Consent: Informed consent for telepractice is still required, and written consent is preferable. Oral consent, however, is permissible when it is the only available option or where circumstances require immediate service delivery. Oral consent should be noted in the patient’s record and need only be documented once. Providers are required to follow-up with written consent at the earliest possible convenience.
• Treatment Plan Deadlines: The OASAS will grant flexibility in treatment plan deadlines. All necessary consents and signature requirements should be obtained verbally and documented in the patient’s record.
• Health Insurers: Providers are encouraged to advise insurers of their designation to provide contracted services via telepractice and their plan of action for doing so. The auto-response email received from the OASAS can be provided to plans that require verification of authorization to provide telepractice.
• Copays: Pursuant to the Department of Financial Services circular letter, patients cannot be charged a copay or deductible for telepractice services. Payments from patients who do not have insurance and pay for services on a sliding scale should be collected if the patient is capable of paying.

Notably, the OASAS guidance states that there is no recommendation in place suggesting that physical sites be closed. This is particularly true for those sites providing injectable medications and other services that require an in-person encounter. Additionally, providers who do not have medical staff capable of delivering these services should make every effort to secure temporary staff or refer patients to other providers where still available.

Admissions and Continued Stay in Community-Based Inpatient and Residential Settings

On March 20, the OASAS also issued guidance addressing admissions and continued stay in community-based inpatient and residential settings.

According to this guidance, providers should only admit individuals who meet Level of Care Determination for withdrawal management and stabilization into an inpatient or residential setting, including residential opioid treatment programs. For individuals who do not meet this requirement, programs are directed to work with referral sources and local governments to identify safe, temporary living arrangements.

Providers are also required to take additional steps when moving individuals to other safe living situations. Programs must make meaningful attempts to implement outpatient addiction aftercare plans, mostly through telehealth. These plans must include, at minimum, Medications for Addiction Treatment (MAT). In the event that an outpatient aftercare plan cannot be identified, residential staff should continue to provide outpatient support, including MAT prescribing, to the individual through telehealth. All patients who are moved must receive overdose prevention education and naloxone, which can be provided directly or through a pharmacy script. If utilizing a pharmacy script, the medication should be picked up or delivered prior to the patient’s discharge. Notably, any program providing ongoing support is directed to keep a record of the services delivered via telehealth as well as any costs associated with these services.

Any programs with extra physical space are instructed to reserve the space to address the needs of individuals in residential or inpatient programs who must be isolated and quarantined but who do not meet the criteria required for medical hospitalization. Finally, programs should have specific plans in place for protecting staff and others from COVID-19, even in instances of personal protective equipment shortages.

Assistance for Service Providers

On March 20, the OASAS issued guidance for service providers, temporarily waiving certain rules and regulations to allow for flexibility and support for providers certified or funded by the OASAS. Specifically, the OASAS waived certain requirements pertaining to flexibility, reciprocity, and funding. The following waivers apply to flexibility and reciprocity:

1. Regulations related to staffing and space configuration will be waived where needed to accommodate staffing shortages and any isolation or quarantine needs of patients in residential settings.
2. Individuals who have completed a criminal background check performed by another state agency may work in OASAS-certified programs.
3. In instances where an OASAS provider has insufficient staff due to the COVID-19 crisis, individuals with a credentialed alcoholism and substance abuse counselor trainee (CASAC-T) are temporarily permitted to act as a qualified health professional (QHP).Individuals who are provisional QHPs are also permitted to temporarily act as QHPs.
4. The deadline to submit an annual Consolidated Fiscal Report (CFR), previously June 1, has been extended to August 1.
5. The expiration date for all credentials, including the CASAC-T, are being held beginning on March 17. This hold does not reactivate credentials expired prior to March 17 and will only remain until April 17.

In terms of funding, the OASAS guidance instructs providers to maintain records of all expenses related to COVID-19, and states that the agency will reimburse provides for all reasonable costs incurred. Additionally:

1. All current recoupment and normal annual reconciliation withholds are being temporarily postponed until further notice.
2. X-restrictions will be lifted where necessary for operating programs.
3. All program recertification reviews are temporarily suspended.
4. Prevention providers unable to meet performance standards will not be fiscally penalized.

Finally, the guidance provides that options for supporting small opioid treatment program providers who do not have net deficit options will be explored by the OASAS.

Opioid Treatment Program Guidance and FAQs

The OASAS also issued guidance intended to support opioid treatment programs (OTPs) in conjunction with other OASAS and Department of Health guidance documents as well as guidance issued by Substance Abuse and Mental Health Services Administration (SAMHSA).

In regards to screening, the guidance states that individuals should be screened for COVID-19 risk and symptoms and strongly encourages OTPs to take all patients’ temperatures in addition to inquiring about symptoms. OTPs should also develop procedures for staff to escort patients who present with respiratory illness symptoms to an isolation room with the door closed or to an alternate location on the OTP grounds (e.g., parking lots) for medication dosing. These patients should not be permitted to enter into the general dispensary or waiting area. The OASAS also directs OTPs to provide patients with chronical medical conditions or who are otherwise vulnerable to infection with up to a 28-day supply of take-home dosing as determined by federal guidelines. The OASAS guidance document also provides a variety of sample case scenarios related to take-home dosing.

Importantly, the OASAS clarifies that OTPs are considered essential public functions and are expected to continue to provide services. An OTP must consult with the NYS Opioid Treatment Authority before making any decisions regarding hours of operation, closures, or restrictions on new admissions or guest dosing. Finally, the guidance provides general direction to OTPs on what should be done to prepare for and respond to the COVID-19 crisis.

Telepractice and Patient Confidentiality

On Monday, the OASAS issued additional guidance on OASAS providers’ use of telepractice. The guidance references the Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 emergency issued by the Department of Health and Human Services (HHS) Office for Civil Rights (OCR), which grants providers flexibility to use videoconferencing technologies that may not be fully compliant with requirements under HIPAA. The OASAS clarified that health care providers are allowed to use any non-public-facing remote communication product to communicate with patients, but may not use public-facing video applications. Providers should also advise patients of the potential privacy risks with using these tools and should use all available encryption and privacy modes.

Guidance issued by SAMHSA is also discussed. This guidance advises providers subject to 42 CFR Part 2 that verbal consent for disclosing substance-use disorder records is permissible when a provider cannot obtain written patient consent as long as the verbal consent is documented in the client’s record and written consent is obtained as soon as practical. Providers may also be able to use Part 2’s medical emergency exception to justify a disclosure of protected information prior to obtaining the patient’s consent in some circumstances.

Sample Travel Letters

On Monday, the OASAS released sample employee and patient letters to serve as official notices that an employee works at an essential business or that a patient is a patient at an essential business. These letters highlight that the employee going to work and the patient going to their health care provider to receive critical services are both essential.

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com or another member of the firm’s Health Care & Health and Human Services Practice Area.