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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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As individuals and organizations take precautions to avoid catching and spreading the COVID-19 virus, telemedicine can play an important part in assessing and treating patients who have COVID-19 symptoms, as well as ensuring continuity of care for patients who prefer not to visit medical facilities to seek care for other health conditions. Health care practitioners who choose to provide care using telemedicine during the pandemic should be aware of the laws and reimbursement policies that apply. This bulletin provides general guidance, with a focus on Ohio laws.

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A health care practitioner must provide telemedicine services in accordance with the laws of the state where the patient is located. If the practitioner chooses to provide telemedicine services to individuals located in other states, they should confirm and comply with the other states’ licensure requirements and telemedicine laws.

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Physicians licensed in Ohio may use oral, written or electronic communications to examine and diagnose patients located in Ohio.<a title="" href="#_edn1" name="_ednref1">[1]</a> Physicians who are not licensed in Ohio may not practice medicine in Ohio without first obtaining a telemedicine certificate, which permits the holder to engage in the practice of medicine in Ohio. Physicians using telemedicine are held to the same standards of care as for in-person care, and failure to conform to the appropriate standards of care, whether care is rendered in person or via telemedicine, may subject the physician to potential discipline by the Ohio State Medical Board (Medical Board).

The Medical Board has advised that a provider practicing telemedicine should:

The Medical Board issued “COVID-19 and Telemedicine Guidance” on March 11, 2020, which provides a review of Ohio law, as well as frequently asked questions.<a title="" href="#_edn2" name="_ednref2">[2]</a>

A provider should obtain the patient’s informed consent to the use of treatment via telehealth.

Prescribing to Persons Not Seen by the Physician<a title="" href="#_edn3" name="_ednref3">[3]</a>

An Ohio physician may prescribe a non-controlled substance to an existing patient if the physician or another person in the prescribing physician’s practice has performed a physical examination of the patient for the condition the medication is intended to treat.

An Ohio physician may prescribe a controlled substance to an existing patient if the physician or another physician in the prescribing physician’s practice has performed a physical examination of the patient for the condition the medication is intended to treat, but only if the patient is an “active patient.”<a title="" href="#_edn4" name="_ednref4">[4]</a>

A physician may prescribe a non-controlled substance to a new patient on whom the physician has never conducted a physical examination and who is at a location remote from the physician, if the physician:

During an interactive telemedicine encounter, a physician may prescribe a controlled substance to a patient for whom the prescribing physician has not conducted a physical examination and who is at a location remote from the prescribing physician only as part of on-call or cross-coverage arrangements for a patient who has received at least one in-person or telemedicine medical evaluation within the previous 24-month period from an Ohio-licensed physician who is temporarily unavailable to evaluate the patient, and the prescribing physician complies with the steps set forth above for prescribing non-controlled substances.<a title="" href="#_edn6" name="_ednref6">[6]</a>

Health care providers should ensure that the technology used to deliver telemedicine services complies with the HIPAA Security Rule’s requirements, meaning that it should be secured and encrypted. In its February 2020 bulletin, “HIPAA Privacy and Novel Coronavirus” (OCR Bulletin), the Office for Civil Rights, U.S. Department of Health and Human Services, reminds covered entities how patient information may be shared under the HIPAA Privacy and Security Rules during an outbreak of infectious disease or other emergency situation.<a title="" href="#_edn7" name="_ednref7">[7]</a> In the bulletin, the OCR confirms that HIPAA’s privacy and security protections are not set aside during an emergency. Covered entities and their business associates must still apply the Security Rule’s administrative, physical and technical safeguards to electronic protected health information.

Common smartphone applications, such as FaceTime and Skype, would not meet these criteria, so a telemedicine provider should utilize videoconferencing technology that is secured and encrypted in accordance with the Security Rule’s requirements. The provider should also enter into a HIPAA-compliant business associate agreement with its videoconferencing technology vendor to ensure that the vendor adequately safeguards patient information shared during a telemedicine encounter.

The OCR Bulletin also details the circumstances under which a health care provider may disclose protected health information without a patient’s consent. While the bulletin does not establish new disclosure exceptions to the HIPAA Privacy Rule, health care providers should familiarize themselves with how protected health information may be shared during the COVID-19 pandemic.

Current Medicare telehealth rules limit opportunities for reimbursement, specifically:

On March 6, 2020, House Bill 6074<a title="" href="#_edn8" name="_ednref8">[8]</a> was signed into law, granting the Secretary of Health and Human Services authority to waive certain Medicare telehealth requirements to provide broader access to reimbursable telehealth services during a declared emergency period to help decrease the need for Medicare patients to visit crowded health care facilities during the COVID-19 outbreak. If implemented by the Secretary, the following changes will apply:

As written, House Bill 6074 appears to apply to any currently eligible services under Medicare, but it remains to be seen whether any forthcoming rules will limit the waivers to only those services involving assessment and treatment of COVID-19. Currently, the Secretary has not yet implemented any rules or program instructions with respect to the waivers. Until the rules or program instructions are issued, current Medicare telehealth reimbursement rules continue to apply.

Presently, Ohio Medicaid has not issued any rules providing flexibility on reimbursement requirements for delivery of telemedicine services related to COVID-19. However, updated rules effective in July 2019 allow practitioners to provide telehealth services to patients in their homes.<a title="" href="#_edn10" name="_ednref10">[10]</a> Despite this added flexibility, Medicaid providers should be aware of the following rules:

Health care providers should review their commercial insurance provider agreements and policy manuals for policies on coverage and reimbursement for services delivered via telemedicine (Health Plan Telemedicine Polices). Many states have adopted telehealth parity laws that require commercial health plans to provide coverage for eligible services delivered via telemedicine in the same way that they cover services delivered in person. Ohio has a new telehealth parity law that applies to health benefit plans issued, offered or renewed on or after January 1, 2021.<a title="" href="#_edn14" name="_ednref14">[14]</a> As this law does not apply to existing health benefit plans, current Health Plan Telemedicine Policies could distinguish between coverage and reimbursement of services provided via telemedicine and those provided in person.

The laws governing the provision of and reimbursement for telemedicine services during the COVID-19 outbreak will likely continue to evolve. Health care practitioners providing or considering providing telemedicine services should monitor the latest developments and consult with legal counsel to ensure compliance.

Cori R. Haper 937.443.6856 <a href="mailto:Cori.Haper@ThompsonHine.com">Cori.Haper@ThompsonHine.com</a>

Rebeccah C. Raines 937.443.6806 <a href="mailto:Rebeccah.Raines@ThompsonHine.com">Rebeccah.Raines@ThompsonHine.com</a>

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force" target="_blank" rel="noopener">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel. This document may be considered attorney advertising in some jurisdictions.

<a title="" href="#_ednref1" name="_edn1">[1]</a> “State Medical Board of Ohio Position Statement on Telemedicine”&nbsp;

<a title="" href="#_ednref2" name="_edn2">[2]</a> State Medical Board of Ohio “COVID-10 and Telemedicine Guidance” at <a href="https://med.ohio.gov/Publications/Recent-News/practicing-telemedicine-in-ohio" target="_blank" rel="noopener">https://med.ohio.gov/Publications/Recent-News/practicing-telemedicine-in-ohio</a>.

<a title="" href="#_ednref3" name="_edn3">[3]</a> The focus of this summary is on a practitioner’s ability to provide telemedicine services to patients in their homes or other non-facilities.

<a title="" href="#_ednref4" name="_edn4">[4]</a> “Active patient” means that within the previous 24 months, the physician or other health care provider acting within the scope of their professional license conducted at least one in-person medical evaluation of the patient. Ohio Administrative Code Section 4731-11-01(D); 21 U.S.C. § 829(e).

<a title="" href="#_ednref5" name="_edn5">[5]</a> Informed consent requires that the patient and the physician discuss the risks and benefits of, and alternatives to, treatment through a remote evaluation, resulting in the patient’s agreement or signed authorization to be treated through remote evaluation conducted through technology.

<a title="" href="#_ednref6" name="_edn6">[6]</a> Ohio Administrative Code Section 4731-11-09(D)(1); 21 U.S.C. 829(e).

<a title="" href="#_ednref7" name="_edn7">[7]</a> <a href="https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf" target="_blank" rel="noopener">https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf</a>.

<a title="" href="#_ednref8" name="_edn8">[8]</a> House Bill 6074 is called the “Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020.”

<a title="" href="#_ednref9" name="_edn9">[9]</a> Providers should continue to comply with the HIPAA Security Rule.

<a title="" href="#_ednref10" name="_edn10">[10]</a> Ohio Administrative Code Section 5160-1-18.

<a title="" href="#_ednref11" name="_edn11">[11]</a> <a href="http://codes.ohio.gov/oac/5160-1-17.8" target="_blank" rel="noopener">http://codes.ohio.gov/oac/5160-1-17.8</a>.

<a title="" href="#_ednref12" name="_edn12">[12]</a> “Active patient” means that within the previous 12 months at least one in-person physical exam or assessment of the patient has been conducted by the telehealth practice or practitioner acting within the scope of their professional license or by the patient’s usual source of medical care that is not an emergency department. Ohio Administrative Code Section 5160-1-18.

<a title="" href="#_ednref13" name="_edn13">[13]</a> See Ohio Administrative Code Section 5160-1-18(D).

<a title="" name="_edn14" href="#_ednref14">[14]</a> <a href="http://codes.ohio.gov/orc/3902.30" target="_blank" rel="noopener">http://codes.ohio.gov/orc/3902.30</a>.

https://admin.thompsonhine.com/wp-content/uploads/2022/05/COVID-19_Update_-_Considerations_for_Practicing_Telemedicine_During_the_COVID-19_Pandemic.pdf

Considerations for Practicing Telemedicine During the COVID-19 Pandemic

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