With the passage of Ohio House Bill 122, effective March 23, 2022, Ohio physicians with a certificate to recommend medical marijuana may now recommend medical marijuana through an examination of the patient either in person or through the use of telehealth services (ORC 4731.30). Such telehealth services must be performed in accordance with ORC 4743.09, a new section of the Ohio Revised Code describing “telehealth services,” which requires the services to be provided through the use of information and communication technology by a health care professional, within the professional’s scope of practice, who is located at a site other than the site where the patient receiving the services is located.
However, note that Ohio licensed physicians may only make recommendations and conduct telehealth services related to medical marijuana recommendations from inside the state of Ohio (to Ohio residents). In other words, an Ohio-licensed physician cannot conduct telehealth visits related to Ohio’s medical marijuana program while sitting at a computer in his or her northern Kentucky office, for example. This poses issues from an Ohio medical marijuana law and Ohio physician licensure perspective.
Despite the fact that Ohio’s medical marijuana law makes medical marijuana a Schedule II controlled substance under state law, ORC 4743.09 prohibits the Ohio State Medical Board from requiring an initial in-person visit before the physician may recommend medical marijuana to a new patient. Thus, physicians may conduct their initial examination of a patient and establish a bonafide physician-patient relationship with a patient for purposes of Ohio’s medical marijuana law through a telehealth visit. Physicians are also prohibited from charging a patient any fee associated with the cost of the equipment used where the physician is located to provide the telehealth services. Finally, physicians must also get consent from the patient to provide the telehealth services before billing for the services.
Other articles on physician compliance with medical marijuana law can be found here and here. There are numerous compliance and operational considerations for physicians to address before getting a certificate to recommend medical marijuana in Ohio. This expansion of the program through telehealth services was a way for the state to allow patients who may have difficulty accessing medical marijuana a better chance at doing so. If you are a physician with questions on this change in the law or medical marijuana in general, feel free to contact me, Brian Higgins (bhiggins@fbtlaw.com; 513-651-6839) or any member of our Frost Brown Todd Healthcare Innovation Industry Team.