Considerations for Practicing Telemedicine in Ohio
Health Care Law Update
Date: October 29, 2018
Telemedicine services are rapidly becoming more common in the United States due to their convenience and ability to increase access to care, expand utilization of specialty expertise, enable coordination of care, assure preventive and follow-up care, and potentially reduce health care costs. Categories of telemedicine include:
- Live video between the provider and patient or between two consulting providers;
- Store-and-forward, where services are provided after receipt of health information from a patient or other health care provider through secured electronic means without real-time interaction with the patient; and
- Remote patient monitoring of health data that is electronically transmitted from the patient to the provider.
Telemedicine via live video can involve the use of a “telepresenter,” a health care professional physically present with the patient during the telemedicine visit.
The laws that govern the practice of telemedicine, as well as reimbursement for services rendered through telemedicine, are changing as this method of providing health care evolves. Following is a summary of the laws pertaining to practicing telemedicine in Ohio. Reimbursement for telemedicine services is not covered in this bulletin, but should be considered.
State Medical Board’s Position
In its Position Statement on Telemedicine, the Ohio State Medical Board (Board) confirmed that “physicians who are licensed in Ohio may examine and diagnose patients through the use of any communication, including oral, written, or electronic, without obtaining a telemedicine certificate.” However, physicians who are not licensed in Ohio may not practice medicine in Ohio through any of these means without first obtaining a telemedicine certificate, which permits the holder to engage in the practice of telemedicine in Ohio.
However, the Board cautioned that physicians practicing telemedicine will be held to the same standards of care as physicians employing in-person medical care, and that a failure to conform to appropriate standards of care, whether the care is rendered in person or via telemedicine, may subject the physician to potential discipline by the Board.
The Board also advised that:
- Staff involved in a telemedicine visit should be trained in the use of the telemedicine equipment.
- A physician practicing telemedicine should have some means of verifying the patient’s identity.
- A diagnosis should be established through the use of accepted medical practices, such as patient history, mental status examination, physical examination, and any appropriate diagnostic or laboratory testing. The patient examination need not be in person if the technology is sufficient to provide the same information to the physician as if the exam had been performed face-to-face. Alternatively, an examination may be considered appropriate if another licensed health care professional who is physically present with the patient is able to provide physical findings that the remote physician needs to complete an adequate assessment. A diagnosis made on the basis of a simple questionnaire without an appropriate examination could be a violation of law.
- Physicians practicing telemedicine should ensure the availability of appropriate follow-up care and maintain a complete medical record of the patient’s care that is available to the patient and other treating health care providers.
Prescribing to Persons Not Seen by the Physician
As a general rule, Ohio-licensed physicians are not permitted to prescribe prescription drugs, including controlled substances and non-controlled substances, without performing a physical examination on the patient.
However, under recent rules adopted by the Board, a physician may prescribe prescription drugs that are not controlled substances to a person on whom the physician has never conducted a physical examination and who is at a location remote from the physician, as long as the physician:
- Verifies the patient’s identity and location;
- Obtains the patient’s informed consent for treatment through a remote examination. 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;
- Through interaction with the patient, completes a medical evaluation that is appropriate for the patient and the condition for which the patient presents and that meets the minimal standards of care, which may include portions of the evaluation having been conducted by other Ohio-licensed health care providers acting within the scope of their professional license;
- Establishes or confirms a diagnosis and treatment plan, including documentation of the necessity for the use of a prescription drug and any underlying conditions or contraindications to the recommended treatment;
- Documents in the patient’s medical record the patient’s consent to treatment through a remote evaluation, pertinent history, evaluation, diagnosis, treatment plan, underlying conditions, any contraindications and any referrals to appropriate health care providers;
- Either provides or recommends any necessary follow-up care;
- Makes the medical record of the visit available to the patient;
- Upon the patient’s consent, forwards the medical record to the patient’s primary care provider or other health care provider, if applicable, or refers the patient to an appropriate health care provider or health care facility; and
- Uses appropriate technology sufficient for the physician to conduct the above as if the medical evaluation occurred during an in-person visit.
Under these recently adopted rules, physicians may prescribe prescription drugs that are controlled substances to a person on whom the physician has not conducted a physical examination and who is at a location remote from the physician in any of the following situations:
- On-call or cross-coverage arrangements for patients who have 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.
- The patient is physically located in a hospital or clinic registered with the Drug Enforcement Administration (DEA) to personally furnish or provide controlled substances, when the patient is being treated by an Ohio-licensed physician or other health care provider who is acting in the usual course of his/her practice and is registered with the DEA to prescribe or otherwise provide controlled substances in Ohio.
- The patient is being treated by and in the physical presence of an Ohio-licensed physician or other health care provider registered with the DEA to prescribe or provide controlled substances in Ohio.
- The telemedicine consult is conducted by a practitioner who has obtained a special registration from the DEA to prescribe or provide controlled substances in Ohio (this special registration is not available as of the date of this bulletin).
- The physician is the medical director, hospice physician or attending physician for a hospice program, and the controlled substance is provided to a patient who is enrolled in the hospice program.
- The physician is the medical director of or attending physician at an institutional facility, and the controlled substance is provided to a person who has been admitted as an inpatient to or is a resident of the institutional facility.
Prior to prescribing or personally furnishing opioid analgesics, benzodiazepines or “reported drugs,” a physician must obtain and review an Ohio Automated Rx Reporting System (OARRS) drug database report, in accordance with the provisions of Ohio Administrative Code Section 4731-11-11.
Physicians must also comply with federal restrictions on prescribing controlled substances to patients on whom the physician has not conducted an in-person medical evaluation.
Under the Controlled Substances Act (CSA) and current DEA regulations, practitioners may not prescribe controlled substances via the internet without conducting at least one in-person medical evaluation. DEA-registered practitioners, however, are exempt from the in-person medical evaluation requirement if the practitioner practices telemedicine.
Under the CSA, telemedicine is defined as “the practice of medicine in accordance with Federal and State laws by a practitioner … who is at a location remote from the patient and is communicating with the patient, or health care professional who is treating the patient,” using multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and the remote practitioner. Telephones, facsimile machines and electronic mail systems do not meet the definition.
Prescribing controlled substances via telemedicine without a prior in-person evaluation is allowed in two common situations, each of which requires the telemedicine practitioner to have a DEA registration in the state in which he or she is located and the state in which the patient is located:
- The patient is being treated at and is physically located in a hospital or clinic that has a DEA registration; or
- Telemedicine is being conducted while the patient is being treated by and in the physical presence of a DEA-registered practitioner in the state where the patient is located (a telepresenter).
Neither of these exceptions to the in-person evaluation requirement covers a direct-to-patient virtual care model.
Federal law is more restrictive than Ohio law, specifically with regard to remote prescribing by a hospice or institutional facility physician without an in-person evaluation, which Ohio permits, but federal law does not. However, because federal law preempts state law, an in-person encounter must occur before controlled substances may be prescribed, except in the circumstances permitted by federal law described above.
FOR MORE INFORMATION
For more information, please contact:
Cori R. Haper
Rebeccah C. Raines
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 Position Statement on Telemedicine, State Medical Board of Ohio, http://med.ohio.gov/DNN/PDF-FOLDERS/Prescriber-Resources-Page/Telemedicine/Telemedicine-Position-Statement.pdf.
 Ohio Administrative Code § 4731-11-09.
 This requirement does not apply to non-controlled substances.
 21 U.S.C. § 829(e).
 21 U.S.C. § 802(54); 42 C.F.R. § 410.78(a)(3); 21 C.F.R. §1300.04(i).
 Prescribing controlled substances without an in-person evaluation is permitted in other less common circumstances.
 21 U.S.C. § 802(54); 21 C.F.R. § 1300.04(i).