Overview
Effective July 11, 2023, the NYS Workers' Compensation Board adopted permanent regulations for telehealth appointments in certain situations for workers who sustain a work-related injury or illness. While telehealth was permitted during the COVID-19 pandemic, it was only allowed because of the institution of several emergency regulations. Now, telehealth is a permanent option within the workers' compensation system.
What is telehealth?
Under the Board's permanent telehealth regulation, telehealth is defined as:
"Treatment by physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers authorized by the Chair to provide treatment and care under the Workers' Compensation Law using two-way audio and visual, electronic communication, or audio only." Treatment may be rendered by telehealth when medically appropriate and subject to the restrictions contained in the regulations.For Board-authorized telehealth, "medically appropriate" means (among other considerations) that an in-person physical exam is not needed in order to assess an injured worker's clinical status, treatment plan, need for further diagnostic testing, or determination of level of disability. It also means that the context of the visit is not one in which the Board recommends or requires an in-person visit, as noted below.
When rendering medical treatment or care via telehealth, the authorized provider must be able to meet the injured worker at the provider's office within a reasonable travel time and distance from the injured worker's residence.
Benefits of telehealth
Telehealth is changing the way health care is delivered across the state and nation. Telehealth appointments can:
- Save time and resources for injured workers.
- Help those with mobility limitations.
- Reduce travel for those living in rural areas.
- Increase access to providers.
Telehealth by provider type
| Can treat via telehealth within proper context* | Can treat via telehealth within proper context and timing** | CANNOT treat via telehealth |
|---|---|---|
| Psychologists | Physicians | Chiropractors | Licensed clinical social workers | Podiatrists | Physical therapists | Nurse practitioners | Occupational therapists | Physician assistants | Acupuncturists |
*See Behavioral health and telehealth section below for details
**See Restrictions based on clinical stage of condition section below for details
Behavioral health and telehealth
For psychologists and licensed clinical social workers, telehealth is typically permitted for the first and subsequent visits (including group therapy), regardless of the clinical stage of the injured worker's condition.
Remote behavioral health visits may take place when there is no added benefit to in-person services, or when an in-person office visit poses an undue risk or hardship on the injured worker. The treating psychologist or licensed clinical social worker must document the reason for use of a remote telehealth visit in the medical narrative portion of their report. Also, see When in-person visits are required section below.
Restrictions for other providers based on clinical stage of condition
Physicians, podiatrists, nurse practitioners, and physician assistants may treat via telehealth within the following restrictions:
- Initial visit: The first visit with a treating provider must be in-person
- Acute and subacute phases of injury or illness: Within the first three months following the date of injury or illness, use of telehealth is at the clinical discretion of the treating provider. However, the treating provider must conduct an in-person assessment at least every third visit.
- Chronic phase of injury or illness: When more than three months has passed from the date of injury or illness, use of telehealth is at the clinical discretion of the treating provider. However, the treating provider must conduct an in-person assessment no less than every three months.
- Injury or illness at maximum medical improvement: When an injured worker is in the chronic phase of injury or illness and the treating provider believes they have reached maximum medical improvement (MMI), meaning their impairment or disability status is permanent and unlikely to change, use of telehealth is at the discretion of the treating provider. However, the treating provider must conduct an in-person assessment at least annually.
Within those parameters and restrictions, there are certain treatment situations when an in-person examination may not be necessary, such as:
- Routine follow-up visits after comprehensive initial in-person exam
- Discussions of test results/counseling on clinical options
- Consultations about prescriptions
- Nutritional counseling
- Dermatology appointments without procedures
When in-person visits are required
For physicians, podiatrists, nurse practitioners, and physician assistants, an in-person visit with the injured worker may be required at certain intervals as specified in the New York Medical Treatment Guidelines, or based on the clinical age/stage of the condition:
- Initial visit
- Every third visit (acute/subacute)
- Every three months (if chronic but not at MMI)
- Annually (if chronic and at MMI)
For all provider types, factors indicating an in-person exam is necessary include but are not limited to:
- Medical examinations to evaluate the permanency of the injured worker's injury or illness (for those providers permitted to assess permanency)
- Procedures, emergencies, eye conditions, and nuanced or complex issues
- Situations in which accuracy, quality, or certainty of assessment, treatment, or recommendations is affected
- Assessments for disability or range of motion, along with physical and occupational therapy, or chiropractic services
- Initiation of a medication for a chronic condition
- Urine drug testing (for those providers permitted to conduct urine drug testing)
- Instances when the injured worker lacks the technology, capacity, or the desire to engage in telehealth visits
Independent medical examinations (IMEs) and telehealth
Telehealth visits for independent medical examinations (IMEs) are allowed if all of the parties agree, and as long as the IME is not offering an opinion on permanent impairment.
Requesting telehealth appointments
Injured workers should check with their health care provider to see if the provider allows telehealth appointments and if they are medically appropriate for their situation.
Related information and resources
June 27, 2023: Subject Number 046-1613: Adoption of Addition of Section 325-1.26 to Title NYCRR (Permanent Telehealth)
July 13, 2023: Telehealth Guidance for Payers
Frequently Asked Questions
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What should I do if I have a telehealth appointment that was scheduled prior to the effective date of the regulation that takes place after July 11th and does not meet the criteria of the new regulation?
You may keep that appointment as a telehealth visit, but subsequent appointments must meet the requirements of the regulation. Be sure to discuss this with your treating provider.
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If a medical provider examines an injured worker by telehealth and the new regulation requires an in-person visit, what should the payer do?
In situations where the payer believes that medical services for a physical injury or illness are being improperly rendered via telehealth, the payer may file a Request for Further Action by Insurer/Employer (Form RFA-2). The payer should select box "K" and indicate that the issue is improper telehealth visit to receive a direction by the Board for the required in-person visit.
The payer may not file a Notice of Objection to a Payment of a Bill for Treatment Provided (Form C-8.1B) if the sole basis for the objection is an improper telehealth visit, unless the visit is clearly prohibited by the regulation, e.g., an initial visit with a provider, a visit to determine permanent impairment, or a visit with a provider type that is not permitted to conduct telehealth visits. In those situations, the payer may file a C-8.1B. They should select the "Other" box and indicate improper telehealth visit.
When a provider repeatedly fails to follow the telehealth regulation, the payer may also report a provider by sending an email to regulations@wcb.ny.gov.