As discussed in our previous Update, the State Medical Board of Ohio proposed a new rule in April 2016 outlining the standards for a physician's prescribing of drugs to patients based only upon a remote encounter. Specifically, the proposed rule would allow a physician to prescribe a noncontrolled substance to a patient based on a telemedicine encounter if the physician uses "appropriate technology" that is "sufficient" for the physician to conduct the evaluation as if it had occurred in person. The Board received comments on the proposed rule from various stakeholders, made minor modifications, and submitted a Business Impact Analysis describing the purpose and impact of the proposed rule. While the rule's use of phrases like "appropriate technology" is vague, the Board clarified parts of the proposed rule in its Business Impact Analysis. For example, although there is no "real-time" element incorporated into the proposed rule, the Board's commentary indicates that store and forward may be appropriate only in the context of a provider-to-provider consultation and not for direct patient care. The commentary also suggests that an "examination via questionnaire" is not sufficient. In addition, several comments indicate than an audio-only encounter is not sufficient to meet the medical evaluation requirement in the proposed rule. Interestingly, the commentary specifically notes that the proposed rule does not apply to nurse practitioners or physician assistants, and the medical board expects to issue a separate rule to apply similar requirements to physician assistants. It is unclear as to whether the nursing board has any plans to propose a similar rule applicable to nurse practitioners.

The new rule would replace the current Rule 4731-11-09, which requires a physician to have personally and physically examined a patient before prescribing any drug to the patient, except in specific situations.

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