Following the passage of House Bill (HB) 122[i] and its corresponding expansion of telehealth services by Ohio health care providers, the State Medical Board of Ohio (Ohio Board) has released proposed administrative rules in furtherance of the recent legislation. The proposed rules, some of which are brand new, while others will amend and replace prior rules, are offered by the Ohio Board to provide further guidance to licensed health care professionals regarding applicable standards of care and regulatory expectations relative to informed consent, record keeping, and remote prescribing.

These new rules would apply to doctors, podiatrists, physician assistants, dietitians, respiratory care professionals, and genetic counselors. Please note that the proposed rules are still undergoing additional regulatory review and may be revised further prior to finalization and promulgation. 

Under the proposed new rules[ii], “telehealth services” are defined as “health care services provided through the use of information and communication technology by a health care professional licensed in Ohio, within the professional's scope of practice, who is located at a site other than the site where the patient is receiving the services or the site where another health care professional with whom the provider of the services is formally consulting regarding the patient is located.”[iii] Under the new proposed rules, telehealth services include the following:

• Synchronous communication technology – means audio and/or video technology that permits two-way, interactive, real-time electronic communication between the health care professional and the patient or between the health care professional and the consulting health care professional regarding the patient.
• Asynchronous communication technology – also called store-and-forward technology, means the transmission of a patient’s stored clinical data from an originating site to the site where the health care professional is located. The health care professional at this distant site can review the stored clinical data at a later time from when the data is sent and without the patient being present. Stored clinical data that may be transmitted via asynchronous communication technology means video clips, sound/audio files, or photo images that may be sent along with electronic records and written records about the patient’s medical condition. Asynchronous communication technology does not include telephone calls, images transmitted via facsimile machines, and text messages, such as in electronic mail, without either visual or audio files of the patient included with the text message. Photographs or video images that are visualized by a telecommunications system must be both specific to the patient’s medical condition and sufficient for furnishing or confirming a diagnosis and/or a treatment plan.
• Remote monitoring devices – means a medical device cleared, approved, or authorized by the United States Food and Drug Administration for the specific purpose which the health care professional is using it and which reliably transmits data electronically and automatically.

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. The proposed new rules do not define or elucidate what is and is not a “routine” communication of information, and it is possible that this ambiguity will be further clarified before the rules become final. 

Furthermore, the Ohio Board’s new proposed rules define “consent for treatment” via telehealth technology to mean a “process of communication between a patient or, if applicable, the patient's parent, guardian, or person designated under the patient's health care power of attorney and the health care professional discussing the risks and benefits of, and alternatives to, treatment through a remote evaluation that results in the agreement to treatment that is documented in the medical record or signed authorization for the patient to be treated through an evaluation conducted through appropriate technology, as specified in this rule, when the health care professional is in a location remote from the patient.”

In addition to the above definitions, the Ohio Board reaffirms in its new proposed rules that the standard of care for a telehealth visit is the same as the standard of care for an in-person visit. Such reaffirmation echoes guidance the Ohio Board has been issuing since 2012.[iv] Under the new proposed rules, should a health care professional determine that the standard of care cannot be met via telehealth services, the individual must take appropriate steps to schedule an in-person visit or otherwise refer the patient for emergency care. Moreover, these efforts must be documented by the health care professional in the patient’s medical record. Other standard-of-care requirements under the proposed new rules outline requirements to verify the patient’s identity and physical location; document consent for treatment; maintain privacy and security standards outlined in federal and state law; complete and document an appropriate medical evaluation and treatment plan; coordinate with other health care providers and follow-up appointments as appropriate; and make medical records available to patients and/or guardians.

With regard to prescribing activities, the Ohio Board’s proposed new rules largely track the agency’s prior administrative rules 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 to the in-person examination requirement for new patients applies, the health care professional must document this in the patient’s medical record. 

The Ohio Board’s proposed new rules are consistent with the mandates of HB 122 and spirit of recent COVID-19-related exemptions from in-person examination requirements that greatly expanded the use of telemedicine. Even so, health care professionals should be aware that the standard of care must always be maintained regardless of the method with which treatment is provided to a patient.

For more information regarding the Ohio Board’s proposed new rules or other changes involving telehealth and telemedicine, please contact a Dinsmore health care attorney.