February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Florida Ends Telehealth Waivers; Department of Health Issues Update

Florida’s telehealth emergency waivers ended on June 26, 2021, after Governor Ron DeSantis’ Office allowed the waivers to expire. The waivers were originally contained in Emergency Orders 20-002 and 20-003. On July 1, 2021, the Florida Department of Health issued a guidance update on how the expiration of those Emergency Orders affects telehealth services. Below is verbatim from the Department’s update:

  • Out-of-state health care practitioners are no longer authorized to render services for patients in Florida unless they become licensed to practice in Florida, except as specified in the HHS Guidance Memorandum (3/12/2021) regarding vaccine administration.

  • Out-of-state health care practitioners are no longer authorized to perform telehealth services for patients in Florida unless they become licensed or registered in Florida.

  • Qualified physicians are required to conduct an in-person physical examination to issue a physician certification for any patient [e.g., for medical marijuana purposes].

  • Controlled substance prescribers are required to conduct an in-person physical examination to issue a renewal prescription for a controlled substance.

While providers were aware these waivers would be time-limited, many did not expect Florida would allow them to expire so suddenly and without a “glide path” such as a 60-day advance notice. The expiration of these waivers, particularly for providers who have been heavily relying on them, means providers need to execute and implement their plans for how to deliver services post-waiver. The Florida Medical Association stated it will push to reinstate telehealth expansions and make them permanent in the next legislative session, including laws for telehealth coverage and payment parity.

In the interim, telemedicine providers relying on the temporary waivers should carefully review the two expired Emergency Orders to understand what practices are no longer permitted. Providers can also review the Florida Department of Health’s Telehealth FAQs. Our prior discussions of Florida’s telehealth waivers are available herehere, and here.

State and federal governments have issued a multitude of telehealth waivers in the wake of the COVID pandemic, such as state-specific waivers on licensure, telemedicine practice standards, modalities, supervision levels, and prescribing controlled substances. These waivers helped practitioners reach more patients and expand their geographic service footprint during the federal Public Health Emergency (PHE). However, the waivers were always temporary measures. The federal PHE will expire at some point, and many state waivers are not tied to the expiration of the federal PHE (which is why some states have already allowed their waivers to expire). Providers who availed themselves of these waivers should have a transition plan on how to ensure legal compliance, uninterrupted business operations, and (most importantly) continuity of patient care.

© 2023 Foley & Lardner LLPNational Law Review, Volume XI, Number 183

About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney

Thomas (T.J.) Ferrante is a Partner and health care lawyer with Foley & Lardner LLP, where he focuses his practice on a wide range of transactional and related regulatory issues for health industry clients, including for-profit and not-for-profit hospitals and health systems, multi-specialty physician practice groups, and long-term care providers. Mr. Ferrante has experience with a variety of transactions, including mergers and acquisitions, joint ventures, strategic affiliations, obtaining and maintaining tax-exemption, employment contracts and leases, and other...

Kyle Faget, Foley Lardner, Government policy lawyer

Kyle Faget is a Partner and business lawyer with Foley & Lardner LLP. She is a member of the firm’s Government & Public Policy Practice and the Health Care and Life Sciences Industry Teams. Her practice focuses on advising clients on regulatory and compliance matters involving the Food, Drug & Cosmetic Act, the False Claims Act, the Anti-Kickback Statute, the AdvaMed Code, and the PhRMA Code. She also regularly drafts and negotiates agreements required for the development and commercialization of pharmaceutical and medical device products. Prior to joining...