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As a follow up to a prior article, in the wake of the COVID-19 pandemic, the Ohio State Legislature passed a law allowing the delivery of healthcare services information and communication technology, commonly referred to as “Telemedicine.” While Ohio did have some rules permitting a limited scope of care under specific circumstances, the State Medical Board of Ohio suspended enforcement of its restrictive rules at the beginning of the shutdown to allow high-risk patients additional means of access to care. After its February 2022 meeting, the Medical Board released preliminary draft telemedicine rules and requested comments from interested parties and the public. At the May 2022 meeting, the Board provided summaries of comments received, along with the Board’s responses to the comments.

Comments that lead to revision of the initial draft rules include:

• Incorporating clarification on the requirement to refer patients for in-person follow-up care with a specialist when treatment needs are “immediate” but not an “emergency.” Proposed Rule 4731-37-01(B)(4)(a).
• Verifying consent to treatment using telemedicine technology during a formal consultation. Proposed Rule 4731-37-01(D).
• Clarification on compliance standards for practitioners with prescriptive authority. Proposed Rule 4731-11-09.

Comments that the Board rejected related to:

• Incorporating a reference to a consulting physician who also billed for the medical service. Proposed Rule 4731-37-01(A)(7).
• Comments the Board felt were merely stylistic revisions. Proposed Rule 4731-37-01(B)(4).

The Medical Board did not make any major revisions to its initial draft. Noteworthy areas of focus and changes continue to include:

• The new Rules require the same standard of care for telehealth visits as for in-person visits.
• Telephone calls (where no visual communication is possible) are restricted to bona fide health care visits that meet the standard of care in all other respects.
• Documentation stands out as a primary focus of the Board. Telehealth practitioners will be required to document every detail in the patient’s chart, including consent to treatment forms and acknowledgments, patent education, referrals, and required follow-up appointments. Every facet of the telehealth visit must be documented. 
• Prescribing medication via telehealth, including controlled substances, will be permissible under the proposed rules provided all in-person requirements are met, and the encounter is properly documented.
• A single in-person visit does not create the presumption that subsequent medication prescribed via telehealth has been issued for a legitimate medical purpose. 

Following its May meeting, the Medical Board approved filing its revised draft rules with Ohio’s Common Sense Initiative Office. A second comment period runs through May 31, 2022. Gaff & McGovern, LPA will continue to track the comments and revisions to these draft rules.

If you are a medical professional or a patient and you have questions regarding telemedicine, you should consider contacting the attorneys at Graff & McGovern, LPA. Our attorneys have decades of experience representing licensed professionals, including Physicians, Physician Assistants, Nurses, and Pharmacists in Ohio. Attorney Levi Tkach can be reached at levi@grafflaw.com.