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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.

Provider Relief Funds – Continued Confusion Regarding Reporting Requirements and Lost Revenues

In Fall 2020, HHS issued multiple rounds of guidance and FAQs regarding the reporting requirements for the Provider Relief Funds, the most recently published notice being November 2, 2020 and December 11, 2020. Specifically, the reporting portal for the use of the funds in 2020 was scheduled to open on January 15, 2021. Although there was much speculation as to whether this would occur. And, as of the date of this article, the portal was not opened.

Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

HHS Issues Opinion Regarding Illegal Attempts by Drug Manufacturers to Deny 340B Discounts under Contract Pharmacy Arrangements

The federal 340B discount drug program is a safety net for many federally qualified health centers, disproportionate share hospitals, and other covered entities. This program allows these providers to obtain discount pricing on drugs which in turn allows the providers to better serve their patient populations and provide their patients with access to vital health care services. Over the years, the 340B program has undergone intense scrutiny, particularly by drug manufacturers who are required by federal law to provide the discounted pricing.

S.B. 263 Protects 340B Covered Entities from Predatory Practices in Ohio

Just before the end of calendar year 2020 and at the end of its two-year legislative session, the Ohio General Assembly passed Senate Bill 263, which prohibits insurance companies and pharmacy benefit managers (“PBMs”) from imposing on 340B Covered Entities discriminatory pricing and other contract terms. This is a win for safety net providers and the people they serve, as 340B savings are crucial to their ability to provide high quality, affordable programs and services to patients.

DOL Finalizes New Rule Regarding Independent Contractor Status, But Its Future Is In Jeopardy

On January 6, 2021, the Department of Labor announced its final rule regarding independent contractor status under the Fair Labor Standards Act. As described in a prior BMD client alert, this new rule was fast-tracked by the Trump administration after its proposal in September 2020. The new rule is set to take effect on March 8, 2021, and contains several key developments related to the "economic reality" test used to determine whether an individual is an independent contractor or an employee under the FLSA.