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By BRIAN C. EVANDER, Esq.
As we close in on the last quarter of 2019, the telehealth industry has never been larger, and Florida is no exception. On April 29, 2019, Florida's legislature passed HB 23, a bill intended to provide additional guidance to health care providers regarding the delivery of telehealth services to Florida patients. HB 23 was then approved by Governor DeSantis on June 25, 2019, enacted as § 456.47, Florida Statutes, and made effective on July 1, 2019.
- 456.47, Florida Statutes, fulfills several important functions that health care providers in Florida have desired for some time, including more specifically-defined telehealth practice standards, as well as a registration process for health care providers from outside of Florida to use telehealth to deliver health care services to Florida patients.
- 456.47 defines telehealth practice standards and, in some cases, expands the permitted scope of telehealth in Florida. Under Subsection (2)(b) of § 456.47, telehealth providers are permitted to perform patient evaluations using telehealth. Moreover, if the telehealth provider conducts a patient evaluation sufficient to diagnose and treat the patient, that provider is not required to research the patient's medical history or conduct a physical examination of the patient before using telehealth to provide health care services to the patient.
Under Subsection (2)(a) of § 456.47, a telehealth services provider does have a duty to practice in a manner consistent with her or his scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to patients in Florida. Further, pursuant to Subsection (2)(c) of § 456.47, telehealth providers may not use telehealth to prescribe a controlled substance except under one of four particular circumstances. Specifically, only if the controlled substance is prescribed using telehealth:
- For the treatment of a psychiatric disorder;
- For inpatient treatment at a hospital licensed under Chapter 395, Florida Statutes;
- For the treatment of a patient receiving hospice services as defined in § 400.601, Florida Statutes; or
- For the treatment of a resident of a nursing home facility as defined under § 400.021, Florida Statutes.
The above represents a notable expansion of the use of telehealth in controlled substance prescribing in Florida. Prior to the passage of HB 23 and subsequent creation of § 456.47 on July 1 of this year, prescribing of controlled substances using telehealth was restricted to the treatment of psychiatric disorders and inpatient treatment at hospitals. That said, prescribers using telehealth should ensure they remain mindful of not only the above state laws, but also federal laws addressing the remote prescribing of controlled substances (such as under the Ryan Haight Act). It is ultimately each provider's responsibility to ensure that their telehealth and prescribing practices are compliant with both state and federal laws as applicable.
Subsection (4) of § 456.47 sets forth the process of registering as an out-of-state telehealth provider for purposes of providing health care services using telehealth to patients in Florida. In essence, out-of-state health care providers can use telehealth to deliver health care services to Florida patients even without a Florida license if the provider registers with the Florida Department of Health or applicable board, meets certain eligibility requirements, and pays a fee. More specifically, the provider must: (1) Complete an application as prescribed by the Florida Department of Health or applicable board; (2) Maintain an active, unencumbered license issued by another state that is substantially similar to the corresponding Florida license; (3) Not have been the subject of disciplinary action relating to her or his license for the previous 5 years; (4) Designate a registered agent in Florida for service of process; and (5) Demonstrate that he or she maintains professional liability coverage which specifically includes coverage for telehealth services to patients in Florida (in amounts equal to or greater than what is required for a Florida-licensed practitioner). Depending on the specific license, additional requirements may apply. On the other hand, Subsection (6) of §456.47 may provide a potential exemption to the above registration requirements under limited circumstances, such as in the case of telehealth services provided in response to an emergency medical condition or in consultation with a Florida-licensed health care professional who has ultimate authority over the diagnosis and care of the patient.
While this article touches on multiple aspects of telehealth law in Florida, it is by no means a comprehensive review of all relevant statutes, rules, and laws governing telehealth services in Florida and is not intended to be (and should not be construed as) legal advice. Telehealth is an evolving and - quite frankly - complicated field. Meeting the ever-changing telehealth requirements and complying with applicable state laws (such as § 456.47) and federal laws will continue to require careful assessment and analysis by knowledgeable health care counsel. We are proud to offer such legal services, as Florida health law continues to advance and develop.
Brian C. Evander, Esquire is a partner at Lowe & Evander, P.A., and regularly represents providers, physicians and other licensed health care professionals, and facilities in a wide variety of health care law matters.
For more information regarding those health care law and such matters please visit our website www.lowehealthlaw.com or call our office at (407) 332-6353.
