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ODM and OhioMHAS Continue to Expand Telehealth

On July 17, 2020, Governor DeWine signed Executive Order 2020-29D, which allowed the Ohio Department of Medicaid (“ODM”) to immediately rescind old provisions and file a new rule (5160-1-18) and the Ohio Department of Mental Health and Addiction Services (“OhioMHAS”) to amend their current rule (5122-29-31), both expanding telehealth and introducing even more flexibility into Ohio’s healthcare system. 

Both rules will expire on November 14, 2020, unless adopted through the normal JCARR process. This is a significant move for ODM as they were previously operating off of a newly added emergency rule (“Telehealth During a State of Emergency”), but the department is now transitioning these expanded telehealth rules directly into their rule that existed prior to the public health emergency. 

In general, if a service does not have some type of in-person requirement (surgery, procedure, test etc.), then it most likely is appropriate to conduct via telehealth. 

ODM – 5160-1-18 

  • Telehealth can either be:
    • Synchronous, interactive, real-time electronic communications using both audio and video; or
    • Asynchronous activities that do not have both audio and video (calls, emails, images through fax) 
  • Patient site and practitioner site – the physical location of each at the time of service 
  • Eligible Providers:
    • Physician
    • Psychologist
    • Physician assistant
    • Certified nurse specialist, certified nurse-midwife, certified nurse practitioner
    • LISW, LIMFT, LPCC
    • LICDC
    • Supervised practitioners and supervised trainees
    • Audiologist, speech-language pathologist, speech-language pathology aids, and audiology aids
    • Occupational and physical therapist and occupation and physical therapist assistants
    • Home health and hospice aids
    • Private duty registered nurse or licensed practical nurse in a home health or hospice setting
    • Dentists
    • Dietitians
    • Behavioral health practitioners 
  • Provider types eligible to bill for services rendered through Telehealth:
    • Any practitioner
    • Professional medical group
    • Professional dental group
    • FQHC/RHC
    • Ambulatory health care clinics
    • Outpatient hospitals
    • Private duty nurses
    • Home health and hospice agencies
    • Behavioral health providers 
  • Requirements:
    • Must comply with current HIPAA guidance from Office of Civil Rights
    • Practitioner site responsible for maintaining appropriate documentation
    • Patient and practitioner sites should be consistent with CPT and HCPCS guidelines for the service being provided 
  • Payment may be made for all of the following services in the appendix here. 
  • Claims should be submitted in accordance with Telehealth billing guidance and those detailed provisions in subparagraph (E) of this new rule 

OhioMHAS – 5122-29-31

Telehealth means real-time audiovisual communications with quality to permit accurate and meaningful interactions and includes asynchronous modalities that do not have both audio and video elements 

  • Originating site (client) and distant site (provider) are where each are located at the time of service 
  • No initial in person visit is necessary to initiate services using telehealth 
  • Prior to initiating services, a provider must inform the patients of potential risks of telehealth and document that patient understood and agrees to those risks (clinical aspects, security considerations and confidentiality considerations) 
  • Services:
    • General services
    • CPST
    • Therapeutic behavioral services and psychosocial rehabilitation
    • Peer recovery
    • SUD case management
    • Crisis intervention
    • ACT
    • IHBT 
  • Provider must have a physical location in Ohio or have access to a physical location in Ohio where individuals may opt to receive services that are being provided by telehealth modalities 

Please contact a BMD healthcare attorney if you have any questions regarding these telehealth rules, any telehealth questions in general, or any other healthcare questions.

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.