April 5, 2017
Effective March 23, 2017, the State Medical Board of Ohio issued new rules (O.A.C. §4731-11-01, §4731-11-09) governing the prescribing of controlled and non-controlled substances to patients not examined in person by a physician. The new rules enable physicians to establish relationships with patients through telemedicine, as opposed to an in-person visit, in order to provide prescriptions to patients.
For the prescribing of non-controlled substances to a remote patient on whom the physician has not conducted a physical examination (e.g., via a telehealth visit), the physician must adhere to the following requirements:
- Establish the patient’s location and physical identity.
- Obtain the patient’s informed consent for treatment via a remote examination.
- Request the patient’s consent, and if granted, forward the patient’s medical record to his/her primary care provider or other healthcare provider or refer the patient to an appropriate healthcare provider or facility.
- Complete a medical evaluation through interaction that is appropriate for the patient’s condition and meets minimal standards of care, which can include portions of the evaluation having been conducted by other Ohio licensed healthcare providers.
- Establish or confirm a diagnosis and treatment plan, which includes documentation of the medical necessity of the drug. The plan must include the identification of any underlying conditions or contraindication to the recommended treatment.
- Document in the patient’s medical record the patient’s consent to remote evaluation treatment, history, evaluation, diagnosis, treatment plan, underlying conditions, contraindications and any referrals to appropriate healthcare providers.
- Provide or recommend appropriate follow-up care.
- Make the medical record of this visit available to the patient.
- Use appropriate technology to document the aforementioned steps as if the evaluation occurred in an in-person visit.
Further, Ohio law goes beyond the laws of most other states in permitting a physician to prescribe a controlled substance to a patient in a remote location on whom the physician has not provided a physical examination (e.g., via a telehealth visit) in any of the following limited circumstances:
- The patient is an “active patient” of the physician or his/her colleague healthcare provider (i.e., the physician or other healthcare provider conducted at least one in-person medical evaluation of the patient or a telemedicine evaluation of the patient within the previous 24 months) and the drugs are provided pursuant to an on-call or cross-coverage arrangement. In addition the physician must follow the steps required for the prescribing of non-controlled substances for remote patients on whom the physician has not conducted a physical exam, which are set forth above.
- The patient is located in a hospital/clinic registered with the U.S. Drug Enforcement Administration (“DEA”) to personally furnish or provide controlled substances, when the patient is being treated by an Ohio licensed physician or other healthcare provider who is also registered with the DEA to prescribe or provide controlled substances in Ohio.
- The patient is being treated by, and in the physical presence of, an Ohio licensed physician or healthcare provider who is registered with the DEA to proscribe and provide controlled substances in Ohio.
- The physician has obtained a special DEA registration to prescribe or provide controlled substances in Ohio.
- The physician is the medical director, hospice physician or attending physician for a licensed Ohio hospice program and the drug is being administered to an enrolled hospice patient and the prescription is transmitted to a pharmacy in compliance with Ohio rules.
- The physician is the medical director of, or attending physician at, an institutional facility (as defined by O.A.C. 4729-17-01, and includes, among others, long term care facilities, nursing homes and psychiatric facilities), and the drug is being provided to a person admitted as an inpatient or who is a resident of the institutional facility and the prescription is transmitted to a pharmacy in compliance with Ohio rules.
Failure to comply with these new rules can subject the physician to disciplinary actions by the State Medical Board of Ohio.
Opioid Prescribing Changes
In other developments, with the intention of curbing the current opioid epidemic in Ohio, Governor John Kasich announced new rules that will be adopted by various state boards, whereby primary care physicians, dentists and other healthcare providers can only prescribe opioids for up to seven days for adults and five days for minors. Such limitations pertain only to acute patients and will not apply to cancer, hospice or addiction patients. In addition, prescribers will be allowed to write prescriptions above these limitations if they provide specific reasons and documentation within the patient’s medical record. The Ohio State Medical Board, Dental Board, Board of Nursing and Board of Pharmacy have backed these rule changes and are expected to enact them within the coming months following review by the Joint Committee on Agency Rule Review.