October 14, 2019

October 14, 2019

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Florida Legislature Passes New Telehealth Law Addressing Licensing, Practice, and Payment

On April 29, 2019, the Florida State Legislature passed HB 23, a law providing additional guidelines on the use of telehealth in the Sunshine State. The bill is now on its way to Governor DeSantis’ desk where he is expected to sign it into law. The law cements the validity of telehealth services in Florida, establishes new telehealth practice standards, creates a registration process for out-of-state health care professionals to use telehealth to deliver health care services to Florida patients, and introduces less-than-ideal commercial reimbursement provisions.

Passage of the bill is due to the outstanding efforts of the Florida telehealth community, including the Florida Telehealth Advisory Council and its dedicated members. The 13-member Council held public meetings throughout 2017, conducted a research survey of Florida health plans, facilities, and providers, and ultimately completed a comprehensive report with recommendations to the Legislature for a telehealth bill.

The bill creates a new section in the Florida statutes (Section 456.47, F.S.) which takes effect July 1, 2019. The essential provisions are summarized and explained below:

Key Definitions

  • Telehealth is defined as the use of synchronous or asynchronous telecommunications technology by a telehealth provider to provide health care services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. Telehealth does not include audio-only telephone calls, e-mail messages, or fax transmissions.
  • Telehealth Provider is broadly defined as an individual who provides a health care service using telehealth, which includes, but is not limited to, a licensed physician, podiatrist, optometrist, nurse, nurse practitioner, pharmacist, dentist, chiropractor, acupuncturist, midwife, speech language pathologist, audiologist, occupational therapist, radiological personnel, respiratory therapist, dietician, athletic trainer, orthotist, pedorthist, prosthetist, electrologist, massage therapist, medical physicist, optician, hearing aid specialist, physical therapist, psychologist, clinical social worker, mental health counselor, psychotherapist, marriage and family therapist, behavior analyst, basic or advanced life support service, or air ambulance service. Telehealth provider also includes an individual licensed under a multi-state health care licensure compact of which Florida is a member state or an individual who obtains an out-of-state telehealth registration (discussed in more detail below).

Practice Standards

  • Standard of Care. The new law makes it clear that a telehealth provider has the duty to practice in a manner consistent with his or her scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to Florida patients.
  • Telehealth Exams. A telehealth provider may use telehealth to perform a patient evaluation. If a telehealth provider conducts a patient evaluation sufficient to diagnose and treat the patient, the telehealth provider is not required to research a patient’s medical history or conduct a physical examination before using telehealth to provide health care services.
  • Telemedicine Prescribing. A telehealth provider may only use telehealth to prescribe a controlled substance if the controlled substance is prescribed for: (1) the treatment of a psychiatric disorder; (2) inpatient treatment at a hospital; (3) the treatment of a patient receiving hospice services; or (4) the treatment of a nursing home resident. This change expands telemedicine controlled substance prescribing in Florida to hospice and nursing home patients. Prior to this law, controlled substances could only be prescribed via telemedicine for the treatment of psychiatric disorders or for patients in a hospital. The Florida Board of Medicine may need to update its regulations to reflect this expansion. Telemedicine prescribers should continue to be mindful of prescribing requirements under federal laws, as remote prescribing of controlled substances is governed by the Ryan Haight Act.
  • Patient Medical Records. Telehealth providers must maintain a complete record of the patient’s care according to the same standard as used for in-person services and comply with applicable Florida law for confidentiality and disclosure of the patient’s medical record.

Out of State Registration and Licensure Exceptions

  • Out-of-State Registration. The new law authorizes out-of-state health care professionals, without a Florida license, to use telehealth to deliver health care services to Florida patients if they register with the Department of Health or the applicable board, meet certain eligibility requirements, and pay a fee. To obtain an out-of-state registration the health care professional must:
    • Complete an application;
    • Maintain an active, unencumbered license issued by another state that is substantially similar to the corresponding Florida license;
    • Not have been the subject of disciplinary action relating to his or her license for the previous 5 years;
    • Designate a registered agent for service of process in Florida;
    • Maintain professional liability coverage, that includes coverage for telehealth services to patients in Florida, in amounts equal to or greater than what are required for a Florida-licensed practitioner;
    • Not open an office in Florida or provide in-person health care services to patients located in Florida.
    • Only use a Florida-licensed pharmacy or a registered nonresident pharmacy or outsourcing facility to dispense medicinal drugs to patients located in Florida. (Pharmacists only)
  • Licensure Exception. A health care professional who is not licensed to provide health care services in Florida, but who holds an active license to provide health care services in another state, may provide health care services using telehealth to a patient located in Florida without a Florida license and without an out-of-state registration, if the services are provided: (1) in response to an emergency medical condition; or (2) in consultation with a Florida-licensed health care professional who has ultimate authority over the diagnosis and care of the patient.

Insurance Coverage of Telehealth Services

While the bill is a great step forward for providers of telehealth services on several fronts, it does not actually require health plans to cover services delivered via telehealth.

With an effective date of January 1, 2020, the bill creates a new Section 627.42396, F.S., which reads:

“A contract between a health insurer issuing major medical comprehensive coverage through an individual or group policy and a telehealth provider, as defined in s. 456.47, must be voluntary between the insurer and the provider and must establish mutually acceptable payment rates or payment methodologies for services provided through telehealth. Any contract provision that distinguishes between payment rates or payment methodologies for services provided through telehealth and the same services provided without the use of telehealth must be initialed by the telehealth provider.”

A new subsection (45) also was added to Section 641.31, F.S., which mirrors this language for health maintenance organizations.

The language merely clarifies that contracts signed by insurers with telehealth providers be “voluntary” with mutually acceptable rates or payment methodologies and requires the telehealth provider to initial any contract provision that would cause telehealth reimbursement to be different than reimbursement for the same services provided in person. This new reimbursement statute resembles the telehealth commercial insurance coverage law in Michigan. Unfortunately, for now, health plan reimbursement continues to be a stumbling block for telehealth providers and patients as Florida remains among the minority of states without a meaningful telehealth insurance coverage law.

What’s Next?

Florida already has telehealth regulations for allopaths (64B8-9.0141) and osteopaths (64B15-14.0081) and many other professional boards have issued a position statement on the practice of telehealth. The new law may require the Board of Medicine to rewrite its current regulation to the extent it conflicts with the controlling provisions of the new statute.

Providers looking to enter the Florida market must understand and navigate these interesting laws on telehealth licensing, practices standards, controlled substances, and reimbursement. We will continue to monitor Florida for any rule changes that affect or improve telehealth opportunities in the state.

© 2019 Foley & Lardner LLP

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About this Author

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

Thomas (T.J.) Ferrante is an associate 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...

813-225-4148
Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

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. 

813-225-4127