Following the passage of House Bill 122 last year, the State Medical Board of Ohio (“Ohio Board”) has released final administrative rules governing the provision of telehealth services by Ohio physicians and certain other provider types.^[i]  The final rules, which became effective February 28, 2023, continue the recent trend of regulators, such as the Drug Enforcement Agency,^[ii] largely reverting back to pre-pandemic telehealth restrictions. This is in conjunction with the forthcoming expiration of the COVID-19 public health emergency on May 11, 2023.

The new rules impose a standard of care for telehealth services that is the same as the standard of care for an in‐person visit.  Health care professionals are permitted to use synchronous (real-time) or asynchronous (store-and-forward) communication technology to provide telehealth services if the standard of care for an in‐person visit can be met for the patient and their medical condition based on the technology selected.  However, if the provider determines that the standard of care for an in‐person visit cannot be met, the provider must either conduct an in‐person visit within a reasonable time or make an appropriate referral to another health care professional that can meet the standard of care.

Other regulatory mandates under the final rules require physicians and providers to:

• Verify the patient’s identity and physical location
• Document consent for treatment
• Maintain privacy and security standards contained in federal and state law
• Complete and document an appropriate medical evaluation, diagnosis, and treatment plan
• Coordinate with other health care providers and follow-up appointments as appropriate
• Make medical records available to patients and/or guardians.

Notably, while Ohio health care professionals are permitted to provide telehealth services through the use of synchronous or asynchronous communication technology, telephone calls do not fall within these categories when they are routine or simply involve the communication of information. However, the Ohio Board may release additional guidance or FAQs that will further define what is considered a “routine” communication.  The Ohio Board has not defined or clarified what is and is not a “routine” communication of information.  As such, providers may want to consider specifically utilizing the word “routine” when documenting the typical communication of information between providers or co-workers.

In relation to remote monitoring devices, the new rules permit physicians and physician assistants to utilize telehealth services using this technology if patient consent is obtained and the devices have been cleared, approved, or authorized by the FDA and otherwise comply with all federal requirements.

With regards to prescribing activities, the Ohio Board’s final rules largely track the agency’s pre-pandemic standards for remote prescribing, with distinctions drawn between regular prescription medication (i.e. dangerous drugs) and controlled substances.  For example, a physician or physician assistant is required to conduct a physical examination of a new patient prior to prescribing a Schedule II controlled substance, such as Vicodin or Ritalin.  However, exceptions exist for the in-person examination requirement for new patients when the provision of telehealth services occurs in the following settings: hospice or palliative care; medication-assisted treatment for addiction; mental health treatment; and emergency situations.  In the event one of these exceptions applies to the in-person examination requirement for new patients, the health care professional must document this in the patient’s medical record.

Although the final rules only address telehealth services provided to patients located in Ohio, the Ohio Board has cautioned that health care professionals should carefully review the laws and regulations of any other state where a prospective patient is located to determine how to provide telehealth services lawfully in that situation.

For more information regarding the Ohio Board’s final rules or other regulatory changes involving telehealth across the United States, please contact a Dinsmore health care attorney.