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Key Requirements for Health Care Providers Practicing Telemedicine

With many of the restrictions resulting from the outbreak of COVID-19, many health care providers are leaning on the ability to practice telemedicine in order to care for their patients when face-to-face encounters are not possible.

While this practice is convenient and gives patients greater access to care, providers must be aware that the delivery of telemedicine services are subject to the same professional and ethical standards as any other delivery of health services. Providers are also bound by the same state and federal laws that otherwise apply.

OCR Statement on Telemedicine, HIPAA + Enforcement Discretion

As always, steps must be taken to ensure the security of the transmission and to establish the identity of the patient. HIPAA still applies, but the HHS Office of Civil Rights has announced that it will exercise discretion in enforcing HIPAA during the COVID-19 crisis. Specifically, OCR announced that it will not impose penalties for noncompliance with regulatory requirements regarding the security of technology and equipment. So long as the provider is acting in “good faith,” the provider may use non-public remote communication products to communicate with the patient, even if such products do not meet HIPAA requirements.

Ohio State Medical Board COVID-19 Resolution

On March 18, the State Medical Board adopted measures, effective March 9, 2020, making it easier for providers to use telemedicine in place of face-to-face visits. During the declared COVID-19 emergency, the Board will not enforce in-person visit requirements normally required in Board rules. The Medical Board altered the telemedicine requirements for the following:

  • Prescribing controlled substances.
  • Prescribing for sub-acute and chronic pain.
  • Prescribing to patients not seen by the prescriber.
  • Pain management.
  • Medical marijuana recommendations and renewal.

Office-based opioid treatment providers must document their use of telemedicine and meet minimum standards of care.

Providers must document their use of telemedicine and meet minimal standards of care. The Medical Board will provide advance notice before resuming enforcement of the above regulation when the state emergency orders are lifted.

U.S. Drug Enforcement Administration

The Secretary of the U.S. Department of Health & Human Services has issued an emergency declaration that alters DEA restrictions on telemedicine prescribing of controlled substances. For as long as the Secretary’s designation of a public health emergency remains in effect, DEA-registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, subject to the following conditions:

  • The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice.
  • The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
  • The provider is acting in accordance with applicable Federal and State law.
  • The practitioner may issue the prescription using any of the methods of prescribing currently available and in the manner set forth in the DEA regulations.

Other Key Considerations

  • Rules for Non-Ohio Physicians. Special rules apply to non-Ohio physicians who treat Ohio residents remotely. Providers should consult an attorney before offering such services to determine their responsibilities and limitations.
  • Insurance Coverage. Increasingly, more payers are covering more telemedicine services. And with the current pandemic, CMS has announced temporarily broadened Medicare coverage for telemedicine. Ohio Medicaid also covers telemedicine services in certain circumstances.
  • Licensing Boards. Other licensing boards have their own regulations regarding providing health care services remotely. For example, subject to certain criteria, tele-counseling is generally permitted in Ohio.
  • Patient Consent and Identity. The provider must confirm the identity of the patient and the patient should consent to being treated through telemedicine
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