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Managing the Commercial Impact of Coronavirus: Emergency Order Relaxes Florida Licensure, Telehealth, and Practice Standards to Combat COVID-19

As part of Florida’s response to the rapidly developing novel coronavirus (COVID-19) pandemic, the Florida Surgeon General, Scott Rivkees, M.D., of the Florida Department of Health (DOH), issued Emergency Order 20-002 (Order) on March 16, 2020, for the purposes of preparing for, responding to, and mitigating the effects of COVID-19. Effective as of March 10, 2020, for 30 days (unless extended), the Order relaxes certain licensure and practice standards requirements for health care professionals providing care to Floridians in connection with preparing for, responding to, and mitigating the effects of COVID-19. Notably, the Order includes several provisions impacting telehealth, which could enable patients to receive care while remaining at home—an important component of federal and state containment efforts. Health care providers should familiarize themselves with the key provisions of the Order, which are expected to remain in place for 30 days, and are summarized below:

1. Health Care Providers Licensure Exception: Health care professionals, advanced life support professionals, and basic life support professionals holding valid unrestricted licenses in states outside of Florida may provide care to patients located in Florida without first becoming licensed in Florida. The health care professionals cannot represent or hold themselves out as a health care practitioner licensed to practice in Florida. Specifically, this exception applies to health care professionals holding licensure in the following areas: acupuncture, allopathic and osteopathic medicine, physician assistant practice, chiropractic medicine, podiatric medicine, naturopathy, optometry, nursing, pharmacy, dentistry, midwifery, speech language pathology and audiology, nursing home administration, occupational therapy, respiratory therapy, dietetics and nutrition practice, athletic training, orthotics and prosthetics, electrolysis, massage, clinical laboratory practice, medical physics, optical, hearing, physical therapy, psychology, clinical counseling, psychotherapy, medical transportation, and radiologic.

2. Out-of-State Telehealth Providers Licensure Exception: Medical doctors, osteopathic physicians, physician assistants, and nurse practitioners holding valid unrestricted licenses in states outside of Florida are explicitly permitted to provide health care services to Floridians via telehealth. Typically, Florida law requires health care providers to hold Florida licensure or register under Florida’s recently established Out-of-State Telehealth Registry to provide telehealth services to Floridians. Out-of-state providers must still abide by Florida’s telehealth practice standards requirements under section 456.47(4), Florida Statutes, and all applicable practice standards laws and/or regulations, including complying with scope of practice requirements.

3. Controlled Substance Prescribing for Chronic Non-Malignant Pain via Telehealth: For existing patients being treated for chronic non-malignant pain, Florida-licensed physicians, physician assistants, and advanced practice registered nurses, designated as controlled substance prescribing practitioners, may issue renewal prescriptions for Schedule II–IV controlled substances via telehealth, without conducting an in-person exam. For purpose of the exception, telehealth is defined to include both synchronous and asynchronous telecommunications technology, as those terms are defined under section 456.47, Florida Statutes. This exception will only apply to existing patients, and only for the purpose of treating chronic nonmalignant pain. Note that while the scope of the Order relating to controlled substance prescribing already complies with existing federal law, on March 17, 2020, the federal Drug Enforcement Agency issued clarifying guidance excepting the requirement for even an initial in-person physical exam prior to prescribing controlled substances during the emergency period. However, to comply with that exception, the prescriber must also comply with state law. Since Florida’s Order is more restrictive, the more permissive federal guidance would not broaden the aforementioned waiver, or otherwise broaden the scope of prescribing controlled substances in Florida via telehealth.

4. Medical Marijuana Re-certifications via Telehealth: Qualified Physicians can use telehealth to conduct physical examinations of exiting patients to re-certify existing qualified patients for medical marijuana. For purpose of this exception, telehealth is defined to include both synchronous and asynchronous telecommunications technology, as those terms are defined under section 456.47, Florida Statutes. Under current Florida law, telehealth cannot be used to conduct the physical examination for medical marijuana certifications—instead, qualified physicians were required to conduct an in-person physical examination while physically present in the same room as the patient. Physicians should be mindful of the limited scope of this exception: it only applies to existing qualified patients with an existing certification issued by that same qualified physician—it does not apply to new patients, or patients treated by other qualified physicians. All other requirements under Florida’s medical marijuana laws remain in place.

5. Prescription Drug Distribution, Dispensing, and Administration Requirements Suspended: There is a suspension of any provisions of chapters 465 (pharmacy) and chapter 499 (drugs and cosmetics), except as the relate to controlled substances, including regulations promulgated thereunder, that if applied, operate to “limit the distribution, dispensing, or administration of legitimate prescription drugs that could hinder, prevent, or delay mitigation of any health-related condition.” This provision is vaguely drafted, and does not specify which provisions of the Florida Drug and Cosmetic Act and Florida Pharmacy Act are being waived. Thus, some uncertainty is being created as to the scope of what is being waived and specific questions should be discussed with an attorney or regulator.

6. Remote Emergency Medical Services Training: Emergency medical personnel can obtain training via remote live videoconferencing or simulation, with the approval of the training program’s medical director. This remote training can apply to half of the required supervised clinical instruction hours and half of the supervised field internship hours required by Florida law.

Health care providers should keep in mind that this is a quickly evolving situation and legal changes and waivers are being promulgated on a daily basis. Thus, health care providers should consult with legal counsel or applicable regulatory agencies related to any future legal developments. Health care providers should take additional steps now to mitigate the risk of suffering negative impacts from the coronavirus.

© 2020 Foley & Lardner LLP

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About this Author

Rachel Goodman Health Care Attorney Foley Lardner Tampa
Senior Counsel

Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies...

813.225.4158
Sunny Levine Health Care Lawyer Foley Lardner
Associate

Sunny J. Levine is a health care lawyer with Foley & Lardner LLP, and member of the firm’s Telemedicine & Digital Health and Health Care Industry Teams working with hospitals and health systems, physician practice groups, and technology companies across the country. Sunny’s practice focuses on federal and state regulatory compliance and business issues in the health care industry. She also works with companies offering highly regulated consumer products, such as medical marijuana and alcohol beverages.

Telemedicine & Digital Health Experience

Sunny’s practice includes regulatory compliance issues associated with telemedicine and digital health, and health innovation. She helps companies navigate state and federal laws and regulations governing telemedicine and digital health for multi-state footprints, including state corporate practice of medicine restrictions, forming a valid provider-patient relationship, licensure requirements, telemedicine prescribing, and informed consent.

Selected, representative matters include:

  • Asynch Direct to Consumer: Advised a start-up company providing nationwide telehealth services through a direct-to-consumer, asynchronous (store & forward) telemedicine platform. Drafted suite of operational contracts and documents for company, including professional service agreements, privacy agreements, technology agreements, and patient-facing materials. Provided guidance on state-specific laws and regulations on prescribing weight loss and lifestyle medications via telemedicine
  • Digital Ocular Health: Advised ophthalmology and optometry groups on federal and state vision laws, including co-location requirements and fraud abuse issues
  • Telemedicine Legislative Tracking: Advised an academic medical center on pending or newly enacted telemedicine laws, regulations, and regulating board policies throughout the U.S., and U.S. territories (Guam, Puerto Rico)
813.462.7712