3/20/20

Health Care Alert: Ohio Releases Emergency Rules Increasing Access to Telehealth

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As we reported last evening, Governor DeWine issued Executive Order 2020-05D which paved the way for the Ohio Department of Medicaid (ODM) and the Ohio Department of Mental Health and Addiction Services (OMHAS) to issue emergency telehealth rules. These rules, issued early this afternoon, expand and enhance access to telehealth services.  The effective date is March 9, 2020, the date the Governor declared an emergency, and the rules will continue in effect for 120 days, or upon the formal adoption of the rules through the normal JCARR process, whichever is sooner.

The Medicaid rule, O.A.C. 5160-1-21, supersedes the telehealth rule formerly found at O.A.C. 5160-1-18.  Both new and established patients may be provided telehealth services under the rule, and no initial face-to-face visit is required to initiate these services.  The new rule allows for direct delivery of services through synchronous, interactive, real-time electronic communication, as well as asynchronous communication, such as telephone calls, images transmitted by facsimile, and e-mail. 

Eligible Provider Types

The following provider types may render services through telehealth under the ODM emergency rule:

Telehealth Services Reimbursable by Ohio Medicaid

Payment may be made by Ohio Medicaid only for the services identified in the ODM rule, which are the following:

Billing for Medicaid Telehealth Services

All of the provider types listed above may bill Medicaid for these telehealth services, except the following:

Additionally, the following providers may bill Medicaid for telehealth services:

Incorporation of HIPAA-Related Directives

Ohio has adopted the HIPAA-related directives issued by the U.S. Department of Health & Human Services Office for Civil Rights, which were issued in response to the COVID-19 national emergency.  For more information on OCR’s HIPAA recent pronouncements, please see our prior alert. To this end, the ODM rule provides the following:

Behavioral Health care Services

With respect to behavioral health care services in particular, the ODM rule permits entities certified by OMHAS to provide services to both new and established patients through telehealth, with no requirement for an initial in-person, face-to-face visit.  Additionally, assertive community treatment (ACT), intensive home-based therapy (IHBT), therapeutic behavioral health services (TBS), psychosocial rehabilitation (PSR), and behavioral health crisis intervention, may all be delivered by telehealth.  Further, OMHAS certified community behavioral health centers that have previously rendered peer recovery support services as evidenced by a claim submitted to ODM or a Medicaid managed care plan with a date of service prior to the effective date of the rule may use telehealth to deliver peer recovery support services.

For its part, OMHAS amended its interactive video conferencing rule – O.A.C 5122-29-31.  Under this emergency amendment, “teleconferencing” now includes real time audiovisual communications, telephone calls, images transmitted through fax, and email. Both new and established patients may be provided with services through these methods.  The rule states that the following services may be provided in this manner:

Importantly, OMHAS requires the progress note documentation to reflect that the service was conducted by telehealth.  Prior to providing the services, the provider must be sure to describe the potential risks associated with receiving services by telehealth, and document that the client was provided with the risks and agreed to assume those risks.  

Vorys is continuing to monitor the COVID-19 outbreak and related guidance to clients in the health care industry.  We strongly urge providers to continually monitor developments that pertain to your specific organization. If you have questions about COVID-19 or its impact on your organization, please contact Suzanne Scrutton, Jolie Havens, Liam Gruzs, Robin Canowitz, Robin Amicon, or Mairi Mull.

The amended O.A.C. 5122-29-31 can be found here: http://www.registerofohio.state.oh.us/rules/search/details/312399

The emergency Medicaid rule (O.A.C. 5160-1-21) can be found here: http://www.registerofohio.state.oh.us/pdfs/5160/0/1/5160-1-21_PH_EM_NE_RU_20200320_1032.pdf

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