Prior to the onset of the COVID-19 pandemic, the use of telehealth across Ohio and the United States was steadily increasing. However, out of necessity over the last two years, telehealth has expanded exponentially in order to reduce risks of COVID-19 transmission to practitioners and patients alike. Nearly overnight, the health care community was forced to change the way services were accessed, delivered, and received.

Regulatory officials at the local, state, and federal levels were also required to change their approach in enforcing varying rules and statutes affecting the health care profession. For example, the Ohio Department of Medicaid (ODM) developed telehealth rules for declared emergencies that included expansion of the types of practitioners eligible to provide telehealth services to Medicaid beneficiaries. ODM also amended its definition of “telehealth” to include telephone-only services, remote patient monitoring, and communication through secure email. Similarly, the State Medical Board of Ohio (SMBO) announced early on in the pandemic that it would not enforce in-person visit requirements for treatment involving matters such as prescribing controlled substances and medical marijuana recommendations/renewals. Many, if not most of these changes were designated as temporary and tied to Ohio Governor Mike DeWine’s declared state of emergency.

On June 18, 2021, Governor DeWine formally ended Ohio’s COVID-19 state of emergency. Since that time, some agencies have attempted to revert to previous regulatory frameworks and approaches that made the use of telehealth improper in certain circumstances. For instance, the SMBO initially announced that it would resume enforcement of in-person visit requirements on Sept. 17, 2021, though the enforcement date was later postponed. These announcements caused much concern to patients and those within the medical community who had leveraged expanded telehealth services during the pandemic.

The Ohio General Assembly quickly realized that Ohioans are not only welcoming, but now demanding that that their health care providers utilize telehealth technologies. As such, Representatives Mark Frazier and Adam Holmes introduced House Bill (HB) 122 – also known as the Telemedicine Expansion Act – that makes Ohio’s telehealth expansion permanent and specifically declares that it is the intent of the General Assembly to expand access to and investment in telehealth services in Ohio. HB 122 was passed unanimously by both the Ohio House and Senate and was signed into law by Governor DeWine on Dec. 22, 2021.

The effect of HB 122 on telehealth in Ohio is significant. In regards to people authorized to provide telehealth services, HB 122 expands the health care professionals who may provide telehealth services to include the following:

• Advanced practice registered nurses,
• Optometrists licensed to practice under a therapeutic agents certificate,
• Pharmacists,
• Physician assistants,
• Physicians,
• Psychologists and school psychologists,
• Chiropractors,
• Audiologists and speech-language pathologists,
• Occupational therapists and physical therapists,
• Occupational therapy assistants and physical therapist assistants,
• Professional clinical counselors, independent social workers, and independent marriage and family therapists,
• Independent chemical dependency counselors,
• Certified Ohio behavior analysts,
• Dietitians,
• Respiratory care professionals, and
• Genetic Counselors.

HB 122 also prohibits health benefit plans from imposing cost sharing for telehealth services that exceeds the cost sharing for comparable in-person services and further requires health benefit plans to reimburse health care professionals for a covered telehealth service. Similarly, HB 122 provides that specified health care practitioners may provide telehealth services to Ohio Medicaid patients if certain requirements are met. Moreover, a health care professional providing telehealth services is not liable in damages under a claim that alleges the services provided do not meet the same standard of care that would apply if the services were provided in person.

HB 122 does permit professional licensing boards to require an initial in-person visit prior to prescribing a schedule II controlled substance to a patient. However, boards are prohibited from mandating an initial in-person visit if the patient record demonstrates the patient: 1) is receiving hospice or palliative care; 2) is receiving medication-assisted treatment or other medication for opioid-use disorder; 3) is a patient with a mental health condition; or 4) as determined by the clinical judgment of a health care professional, is in an emergency situation. Physicians are also authorized to use telehealth services to conduct the patient examination that is required before medical marijuana may be recommended.

Health care professionals must be aware that licensing boards and administrative agencies may adopt rules necessary for implementing the bill’s provision of telehealth services, including rules that generally establish a standard of care for telehealth services equal to the standard of care for in-person visits.  Moreover, interested parties generally have the opportunity to offer comments and input to such boards and agencies during the formulation of such rules.

If you have any questions about the recent changes to Ohio’s telehealth laws and legal landscape, please contact a member of Dinsmore’s health care practice group.