Consent Requirements
Providers are to obtain consent prior to rendering a service via telehealth from the beneficiary receiving services or their legal guardian. Providers must also allow beneficiaries to elect to return to in-person services at any time. Services rendered via telehealth may not be recorded without the beneficiary’s consent. Beneficiaries may elect not to receive services via telehealth at any time. Providers cannot use a beneficiary’s refusal to receive services via telehealth as a basis to limit the beneficiary’s access to services.
As OMHSAS works on a bulletin for updated telehealth guidelines, providers will be able to document consent heard by one employee of the service provider. While a previous Frequently Asked Question memo issued on August 16, 2022, required two-person verification of consent, OMHSAS will permit providers to document consent heard by one employee of the service provider.
OMHSAS has stressed the importance of developing appropriate systems to capture electronic signatures since February 2021. Given the options available to providers, OMHSAS expects providers to meet federal and state guidance. OMHSAS understands the challenges providers are experiencing and therefore, it will extend the suspension of bulletins identified in the February 18, 2021 OMHSAS memo to December 31, 2023. The suspension is specific only to consent to treatment, service verifications, and treatment plans that are scheduled to end on March 31, 2023. Effective on January 1, 2024, providers are expected to capture consent to treatment, service verifications, and approval of treatment plans in a manner that creates an auditable file and is in accordance with the timelines expected within regulation.
Services delivered through telehealth may also be provided outside of a clinic, residential treatment setting or facility setting. With the consent of the individual served and when clinically appropriate, licensed practitioners and provider agencies may deliver services through telehealth to individuals in community settings, such as to an individual located in their home. The licensed practitioner or provider agency must have policies in place to address emergency situations, such as a risk of harm to self or others.
Licensed practitioners and provider agencies must obtain consent from the individual receiving services or their legal guardian, as applicable, prior to rendering a service via telehealth. Licensed practitioners and provider agencies must also allow individuals to elect to return to in- person service delivery at any time. Individuals may refuse to receive services through telehealth.
As with services delivered in-person, licensed practitioners and provider agencies must obtain consent from the individual served or their legal guardian, as applicable, to make any recordings of the provision of services through telehealth appointments. Licensed practitioners and provider agencies are not permitted to mandate the use of recording for telehealth service delivery and must still provide the service if an individual or legal guardian, as applicable, does not consent to a recording.
The medical record for the individual must indicate each time services are provided through telehealth in addition to the standard documentation requirements. Consent for services and service modality, such as in-person or telehealth, should be obtained and documented prior to rendering services. Additionally, if the individual served or their legal guardian, as applicable, consents to the recording of a telehealth service, documentation of consent must be included in the medical record.
Signatures for consent to treatment, service verification, and acknowledgement of receipt of treatment or service plan(s) may include hand-written or electronic signatures. Consistent with Act 69 of 1999 Electronic Transactions Act, an electronic signature is an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
Providers are to obtain consent from the beneficiary or the beneficiary’s legal guardian prior to rendering interprofessional consultation services on behalf of the beneficiary receiving services.