Telehealth services expanded in Ohio by new executive order

Bricker Graydon LLP

Bricker & Eckler LLP

On July 16, 2020, Ohio Governor DeWine issued Executive Order (2020-29D), authorizing the adoption of new and amended emergency rules for the provision of telehealth services in the state. 

Under the Executive Order, the Ohio Department of Medicaid is authorized to adopt a new version of OAC 5160-1-18 and rescind the prior version, and the Ohio Department of Mental Health and Addiction Services (OhioMHAS) is authorized to adopt an amended version of OAC 5122-29-31. Both rules became effective July 16, 2020.

OAC 5160-1-18 is an Ohio Medicaid regulation regarding the coverage of telehealth services. The new version is similar to the emergency rule (OAC 5160-1-21) issued on March 20, 2020, making broad changes to expand eligibility of telehealth services. However, there are several key differences:

  • By its terms, OAC 5160-1-21 applied only during the state of emergency declared due to the COVID-19 pandemic. The new rule, OAC 5160-1-18, is permanent. 
  • Additional types of practitioners are permitted to provide telehealth services, including: (1) home health and hospice aides, (2) private duty registered nurses and licensed practical nurses in a home health or hospice setting, (3) dentists and (4) behavioral health practitioners. 
  • Additional medical services are reimbursable by Medicaid when rendered through telehealth, including: (1) limited oral evaluation, (2) hospice services, (3) private duty nursing services, (4) state plan home health services, (5) ESRD related services and (6) behavioral health services covered under OAC Chapter 5160-27 and OAC 5160-8-05, subject to certain conditions.

OAC 5122-29-31 was previously titled “Interactive Videoconferencing” and allowed limited behavioral health services through that technology. The amended version of OAC 5122-29-31 is titled “Telehealth” and provides expanded access to behavioral health services using telehealth technologies. Important changes to OAC 5122-29-31 include:

  • Technology that may be utilized is expanded beyond videoconferencing to allow any real-time audio/visual communications of such quality as to permit accurate and meaningful interaction between at least two persons, including asynchronous modalities that do not have both audio and video capabilities.
  • The amended rule expressly provides that “[n]o initial in person visit is necessary to initiate services using telehealth modalities.”
  • Additional services may be provided through telehealth, including: (1) peer recovery services as defined in OAC 5122-29-15, (2) SUD case management service as defined in OAC 5122-29-13, (3) crisis intervention service as defined in OAC 5122-29-10, (4) assertive community treatment service as defined in OAV 5122-29-29 and (5) intensive home based treatment service as defined in OAC 5122-29-28.
  • The requirement to provide written documentation of potential risks and obtain written acknowledgment prior to services being rendered is removed. Instead, the practitioner is required to describe the potential risks associated with telehealth services and document this in the record, allowing this to be completed remotely and eliminating the need to see the patient in person at the outset of services.

It should be noted that the amended rule retains the requirement that the practitioner must have a physical location in Ohio or have access to a physical location in Ohio where individuals may opt to receive the services that are being provided by telehealth.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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