Consent Requirements

Services provided by means of telehealth must be in compliance with HIPAA and all other relevant laws and regulations governing confidentiality, privacy, and consent, including, but not limited to 45 Code of Federal Regulations (CFR) Parts 160 and 164 [HIPAA Security Rules]; 42 CFR, Part 2; Public Health Law Article 27-F; and Mental Hygiene Law §33.13. All providers must take steps to reasonably ensure privacy during all patient-practitioner interactions.

The practitioner shall confirm the identity of the NYS Medicaid member and provide the NYS Medicaid member with basic information about the services that they will be receiving via telehealth. Written consent by the NYS Medicaid member is not required, but the provider must document informed consent in the chart of the patient before or during the first visit in which telehealth services are provided. Telehealth sessions/services shall not be recorded without the consent of the NYS Medicaid member.

Informed consent means that telehealth practitioners provide members with sufficient information and education about telehealth to assist them in making an informed choice to receive telehealth services. This must include the following:

1. The telehealth provider must confirm that the NYS Medicaid member is aware of the potential advantages and disadvantages of telehealth, be given the option of not participating in telehealth services and information regarding their right to request a change in service delivery mode at any time.
2. The telehealth provider must inform NYS Medicaid members that they will not be denied services if they do not consent to telehealth devices or request to receive services in-person.
3. Where the NYS Medicaid member is a minor and the service requires parent/guardian consent, consent shall also be provided by the parent/guardian or other person who has legal authority to consent to health care on behalf of the minor.

Informed consent shall be obtained through a process of communication between the telehealth provider and NYS Medicaid member. Although some providers may choose to document informed consent to receive telehealth services using a form, it is not necessary to use a specific form. Informed consent processes should be specified in the policies and procedures of the provider.

Virtual Check-Ins

The patient must consent to receive virtual check-in services and the provider must document the consent of the patient in their chart at least once annually while the patient receives virtual check-in services.

SOURCE: NY Dept. of Health Medicaid Telehealth Policy Manual (Dec. 2024), p. 21. (Accessed Apr. 2025).

eConsults

The treating/requesting provider shall provide the NYS Medicaid member with information about the eConsult and obtain consent from the patient prior to each eConsult. A single instance of patient consent cannot apply to multiple eConsults across different specialties. Written consent is not required; however, the provider must document informed consent in the chart of the patient before the eConsult. Patients have the right to refuse an eConsult and see a consultative provider in-person if they wish to do so. The following information must be documented in the medical record by the treating/requesting provider:

• the written or verbal consent made by the patient for the eConsult;
• the request made by the treating/requesting provider; and
• the recommendation and rationale from the consultative provider.

SOURCE: NY State Medicaid Update January 2024 Volume 40, Number 1, NY Dept. of Health Medicaid Telehealth Policy Manual (Dec. 2024), p. 26. (Accessed Apr. 2025).

Home Sleep Test (HST)

The treating healthcare provider shall provide the member with information about HST and obtain consent from the patient. Written consent is not required, but the healthcare provider must document informed consent in the chart of the patient. The following must be documented in the medical records of the patient:

1. Documentation of informed consent by the patient.
2. Documentation supporting the medical necessity for sleep testing must be maintained in the clinical file of the ordering physician.
3. Documentation of patient history, physical exam, and healthcare provider assessment that prompted the need for an HST.
4. Documentation of the HST outcome/test results.

SOURCE: NY Dept. of Health Medicaid Telehealth Policy Manual (Dec. 2024), p. 29. (Accessed Apr. 2025).

Mental Health

Telehealth services may be provided only where clinically appropriate and with informed consent by the recipient. Where the recipient is a minor consent shall also be provided by the parent/guardian or other person who has legal authority to consent to health care on behalf of the minor. The recipient may withdraw consent at any time. A provider may not deny services to an individual who has a preference to receive services in-person.

SOURCE: NY Code of Rules and Regs.  Title 14, Sec. 596.1(b), as amended by Final Rule and Notice Of Adoption. (Accessed Apr. 2025).

Part of obtaining approval for telehealth services is obtaining informed consent and may be incorporated into the informed consent process for in-person care.  See regulation for specific requirements.

SOURCE: NY Code of Rules and Regs.  Title 14, Sec. 596.5(b)(c) & 596.6., as amended by Final Rule and Notice Of Adoption. (Accessed Apr. 2025).

Mental health services guidance requires the same informed consent process as above and additionally states that:

• Informed consent must be obtained before or during the first visit in which Telehealth Services are provided and documented in the case record
• Individuals, or a minor individual’s parent or guardian, should be informed how to verify a Telehealth Practitioner’s professional license.

SOURCE: NY Office of Mental Health. Telehealth Services Guidance for OMH Providers. April 2023, p. 11. (Accessed Apr. 2025).

Teledentistry

Services provided by means of telehealth must be in compliance with the Health Insurance Portability and Accountability Act (HIPAA) and all other relevant laws and regulations governing confidentiality, privacy, and consent.

SOURCE: NY Dental Policy and Procedure Code Manual 2025, page 71. (Accessed Apr. 2025).