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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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In response to the need to limit the spread of COVID-19, federal and Ohio state agencies have lifted restrictions on the practice of telehealth, prescribing of controlled substances, and reimbursement for services delivered to Medicare and Medicaid patients via telehealth in order to facilitate patient access to medical care in their homes. These rules apply only during the COVID-19 emergency.

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The following describes the changes to Medicare telehealth visit rules during the COVID-19 national emergency <a href="https://www.cms.gov/files/document/general-telemedicine-toolkit.pdf" target="_blank" rel="noopener">issued by the Centers for Medicare &amp; Medicaid Services (CMS)</a>. There are no changes to virtual check-ins and e-visits.

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Originating Site. Starting March 6, 2020<a title="" href="#_ftn1" name="_ftnref1">[1]</a> and for the duration of the COVID-19 public health emergency, limitations on where Medicare patients are eligible to receive telehealth services (the originating site) have been removed so that patients in any geographic location may receive services in their homes.

Qualified Providers. Qualified providers who are permitted to furnish Medicare telehealth services during the public health emergency include physicians and certain non-physician practitioners such as nurse practitioners, physician assistants and certified nurse midwives.

Diagnosis. Telehealth services are not limited to services related to COVID-19 and are available to any Medicare patient for any medical need without regard to the diagnosis of the patient.

Prior Patient Relationship. CMS will not enforce any requirements that the patient have a prior established relationship with a practitioner prior to using telehealth to deliver services to new Medicare patients.

Telehealth Technology. Qualified providers may furnish services using telephones that have audio and video capabilities, rather than using two-way, real-time interactive communication technology.

Billing for Telehealth Services. Medicare telehealth visit services generally are billed as if the service had been furnished in-person, but the claim should reflect the designated Place of Service code “02-Telehealth” to indicate the billed service was furnished as a professional telehealth service from a distant site. CMS maintains a <a href="https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes" target="_blank" rel="noopener">list of services</a> that are normally furnished in-person that may be furnished via Medicare telehealth visits. These services are paid under the Physician Fee Schedule at the same rate as in-person visits. The use of telehealth does not change the out-of-pocket costs for Medicare patients, such as deductibles and coinsurance, but the Office of Inspector General is temporarily permitting health care providers to reduce or waive cost-sharing obligations for telehealth visits paid by Medicare or Medicaid, a practice that otherwise would raise fraud and abuse concerns.

Medicare currently covers virtual check-ins and e-visits for established patients, and there is no change to these types of interactions as a result of the COVID-19 public health emergency. These virtual services are not available for new patients.

Virtual Check-Ins. Medicare patients may have a brief communication service (5-10 minutes of medical discussion) with a practitioner via a number of communication technology modalities, including telephone, email, text messaging, patient portals, or exchange of information through video or image. These visits must be initiated by the patient, but practitioners may educate the patient on availability of the service. The patient must verbally consent to receive virtual check-in services, and Medicare coinsurance and deductibles apply to these services. The purpose of these brief check-ins is for patients to avoid unnecessary trips to the doctor’s office. The communication cannot be related to an evaluation and management (E/M) medical visit within the previous seven days and may not lead to an E/M medical visit within the next 24 hours (or soonest appointment available). Virtual check-in services are not subject to any geographic or location restrictions.

E-Visits. Medicare patients may communicate with their providers without going to the provider’s office by using online patient portals. Like virtual check-ins, there are no geographic or location restrictions on e-visits. The patient must generate the initial inquiry and communications can occur over a seven-day period. The patient must verbally consent to receive e-visit services, and Medicare coinsurance and deductibles apply to these services.

CMS has advised providers to inform their patients that services are available via telehealth.

During the COVID-19 public health emergency, the <a href="https://www.dea.gov/press-releases/2020/03/20/deas-response-covid-19" target="_blank" rel="noopener">agency announced</a> that DEA-registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, as long as the following conditions are met:

If the practitioner satisfies all of the above requirements, then the practitioner may issue the prescription using any of the methods of prescribing currently available and in the manner set forth in the DEA regulations. Thus, the practitioner may issue a prescription either electronically (for schedules II-V) or by calling in an emergency schedule II prescription to the pharmacy, or by calling in a schedule III?V prescription to the pharmacy.

Note that if the prescribing practitioner has previously conducted an in-person medical evaluation of the patient, the practitioner may issue a prescription for a controlled substance after having communicated with the patient via telemedicine, or any other means, regardless of whether a public health emergency has been declared, so long as the prescription is issued for a legitimate medical purpose and the practitioner is acting in the usual course of his/her professional practice, and the practitioner complies with applicable state laws.

The Ohio Department of Medicaid (ODM) issued emergency telehealth rules, effective March 9, 2020 for the duration of the Ohio state of emergency, to lift certain Medicaid telehealth restrictions (“Emergency Rules”).<a title="" href="#_ftn2" name="_ftnref2">[2]</a>

Location. Patients and providers may be at any location, including in their homes.

Eligible Providers. The categories of practitioners who are eligible to provide telehealth under the Emergency Rules have greatly expanded. A complete list can be found in the Emergency Rules.

Definition of Telehealth. Under the Emergency Rules, telehealth is defined as (a) the direct delivery of health care services to a patient via synchronous, interactive, real-time electronic communication comprising both audio and video elements, or (b) activities that are asynchronous and do not have both audio and video elements such as telephone calls, images transmitted via facsimile machine, and electronic mail. All Medicaid patients are permitted to receive services via telehealth, regardless of the last time they had a face-to-face visit with their health care provider and regardless of their status as a new or existing patient.

Telehealth Technology and HIPAA Security. The Emergency Rules incorporate the directive of the Office for Civil Rights of the Department of Health and Human Services (OCR) that permits health care providers during the COVID-19 public health emergency to communicate with patients, and provide telehealth services, through remote communications technologies even though some of the technologies may not fully comply with the HIPAA rules. Examples of technologies that are permissible during the public health emergency include Apple FaceTime and Skype. See our <a href="https://www.thompsonhine.com/publications/ocr-allows-flexible-telehealth-technology-use-during-covid-19-emergency">previous client update on this topic</a> for more information.

Medical Records. Practitioners should have access to a patient’s medical records to the greatest extent possible during the time of service, and practitioners are responsible for maintaining the records as required under HIPAA. If a practitioner does not have access to the medical records, the practitioner should create the appropriate documentation during and subsequent to the telehealth encounter and, to the greatest extent possible, maintain existing documentation requirements.

Payment. Payment may be made only for services that are deemed medically necessary when delivered through telehealth. The list of services reimbursed by Medicaid can be found at the appendix to the Emergency Rules, and includes:

Coding and Claims. Providers should reference the Emergency Rules and frequently asked questions for information and guidance on coding and submission of claims as a result of providing services that are permissible under the Emergency Rules. Until ODM’s IT systems change to reflect the new rules, providers may hold claims until the IT system changes are completed or submit claims for telehealth services using existing billing rules.

Ohio Department of Mental Health and Addiction Services

The Ohio Department of Mental Health and Addiction Services (OhioMHAS) issued <a href="http://www.registerofohio.state.oh.us/pdfs/5122/0/29/5122-29-31_PH_EM_AE_RU_20200320_1032.pdf" target="_blank" rel="noopener">amended emergency telehealth rules</a>, effective March 9, 2020,<a title="" href="#_ftn3" name="_ftnref3">[3]</a> expanding access to services through telehealth during the COVID-19 emergency. Prior to implementation of the emergency rules, providers certified by OhioMHAS were required to have face-to-face contact with a patient during an initial visit prior to engaging in the provision of behavioral and mental health services via telehealth. The face-to-face requirement during an initial visit has been suspended during the emergency to allow both new and established Medicaid patients to receive services via telehealth. OhioMHAS also expanded the types of services that may be delivered via telehealth.

Effective March 9, 2020, and during the COVID-19 public health emergency, licensed providers may use telemedicine in place of in-person visits without enforcement from the Medical Board. This includes, but is not limited to:

Providers must document their use of telemedicine and meet minimal standards of care. Providers prescribing to patients not seen in-person by the physician must act in good faith in establishing or continuing the provider-patient relationship.

The Medical Board also authorized its staff to work with the State Emergency Management Agency to effectuate temporary Ohio licensure eligibility for out-of-state doctors who are called upon to respond to the COVID-19 emergency in Ohio. Until this occurs, out-of-state providers will still need to obtain a telemedicine certificate from the Medical Board.

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>

Sarah M. Hall 202.263.4192 <a href="mailto:Sarah.Hall@ThompsonHine.com">Sarah.Hall@ThompsonHine.com</a>

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">COVID?19 Task Force web page</a> for additional information and resources.

<a title="" href="#_ftnref1" name="_ftn1">[1]</a> The Coronavirus Preparedness and Response Supplemental Appropriations Act, as signed into law by the president on March&nbsp;6, 2020, includes a provision allowing the Secretary of the Department of Health and Human Services to waive certain Medicare telehealth payment requirements during the Public Health Emergency declared by the secretary on January 31, 2020, to allow Medicare patients in all areas of the country to receive telehealth services, including at their homes.

<a title="" href="#_ftnref2" name="_ftn2">[2]</a> On March 19, 2020, Ohio Governor DeWine signed <a href="https://content.govdelivery.com/attachments/OHOOD/2020/03/19/file_attachments/1406216/20200319175845648.pdf" target="_blank" rel="noopener">Executive Order 2020-05D</a> to provide for the emergency adoption of Rule 5160-1-21 of the Ohio Administrative Code by the Ohio Department of Medicaid (which supersedes Rule 5160-1-18) and the emergency amendment of Rule 5122-29-31 of the Ohio Administrative Code by the Ohio Department of Mental Health and Addiction Services.

<a title="" href="#_ftnref3" name="_ftn3">[3]</a> In addition to the Emergency Rules, Executive Order 2020-05D also provides for the emergency amendment of Rule 5122-29-31 of the Ohio Administrative Code by the Ohio Department of Mental Health and Addiction Services.

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.

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Emergency Orders Increase Access to Medical Care and Reimbursement for Telehealth Services During COVID-19 Public Health Emergency

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