The New York City skyline, including the Empire State BuildingIn a post on February 28, Fox associate Kristen Marotta discussed the privacy and security issues arising from the growing use of telemedicine, particularly for mental health treatment. Now on the firm’s Physician Law blog, Kristen continues her discussion of telepsychiatry by diving into recent developments in New York State surrounding the innovative practice model. Kristen notes new funding from the New York Office of Mental Health to expand its use, and breaks down the OMH regulations that psychiatrists and physicians will need to consider before offering telepsychiatry services.

We invite you to read Kristen’s piece.

Kristen Marotta writes:

Many believe that educated millennials are choosing to work in urban, rather than rural areas, during their early career due to societal milestones being steadily pushed back and the professional opportunities and preferences of a young professional. Recent medical school graduates are a good example of this dichotomy. The shortage of physicians in rural areas is a well-known phenomenon. Over the years, locum tenens staffing has helped to soften the impact and, recently, so has telemedicine.

Illustration of stethoscope and mobile phone, symbolizing telemedicineThe growing prevalence of telemedicine around the country is an important consideration for new physicians as they decide where to settle down and establish their careers.  In New York, medical graduates should be aware that a $500,000 federal grant was given to New York State’s Office of Mental Health this month, February 2018 by the U.S. Department of Agriculture Rural Development Distance Learning and Telemedicine program.  Using telemedicine to provide mental health services may be a productive and efficient way to deliver healthcare, not only because many mental health examinations would not have to be conducted in-person, but also because of the general shortage of psychiatrists and mental health providers to meet these patient needs. Now, medical graduates who would like to establish their lifestyle in a city can simultaneously care for patients living miles apart from them.

It is essential that health care providers engaging in telemedicine understand the implications of this practice model with respect to compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  Providers rendering health care services via telemedicine should update and adjust their security risk assessments and HIPAA privacy and security policies and procedures, because protected health information is likely to be created in two separate locations (i.e., the location of the provider and the location of the patient).  Providers should also make sure that their (or their practice’s) Notice of Privacy Practices has been updated to reflect the provision of services via telemedicine, so that the patient has the opportunity to make an informed decision about engaging in this type of health care. Additionally, new business associate agreements may be required with telehealth vendors that do not meet the narrow “mere conduit” exception and any new parties who will have access to the individual’s protected health information as a result of the provision of services via telemedicine. In connection with these efforts, Providers should research and conduct due diligence on vendors to confirm that they understand the services model and are HIPAA-compliant.

As telemedicine emerges and gains more traction in health care, state laws and regulations will also be created and/or updated, and physicians will need to keep abreast of these changes. A good example of this is the State of New York, which has an entire section of mental health regulations dedicated to telepsychiatry. Stay tuned to Fox Rothschild’s Physician Law Blog for further updates on these specific New York regulations, as well as the developments in telemedicine.


Kristen A. Marotta is an associate in the firm’s Health Law Department, based in its New York office.