Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.
Telemedicine law and telehealth law is driven at the federal level, but mostly at the state level, since the developing areas of law are more dynamic at the state level than they are at the federal level. For instance, the Florida Telehealth Advisory Council is recommending that telehealth capabilities be expanded and that insurance reimbursement for telehealth services be compelled. If the Council’s recommendations are adopted by Florida legislators, it will be the most forward moving telehealth law in the country.
We are committed to advising teleheatlh providers and telemedicine providers and related telehealth vendors of all kinds, both within Florida and around the country. Given our extensive experience and exclusive focus on healthcare law, we see where healthcare is headed; and we are working closely with many around the country who have caught the wave of telehealth.
On June 30, 2020, State Surgeon General, Scott A. Rivkees, M.D., issued Emergency Order (“EO”) 20-011, which further extends EO 20-002 until the expiration of the Governor’s Executive Order No. 20-52, or any extensions thereof. Thus, EO 20-011 continues to allow out-of-state MDs, DOs, APRNs and PAs, to offer telehealth services to persons in Florida.
EO 20-011 continues to allow Florida licensed controlled substance prescribers (MDs, DOs, APRNs, PAs) to issue renewal prescriptions of controlled substances for non-malignant pain for existing patients. Additionally, EO 20-011 extends a qualified physician’s ability to recertify an existing qualified and certified patient’s continued use of medical marijuana using telehealth services. These further extensions are also tied to the expiration of Executive Order 20-52 and any extension thereof. read more
Today no one can live without a smart phone, and we interact with the rest of the world through a series of apps that reside on our handheld devices. From the healthcare perspective many large healthcare institutions and private companies have developed a myriad of healthcare related apps that currently reside in Apple’s App Store and Googles Play Store. You can measure your heart rate, get clinical advice, view your records, check on your health insurance coverage, make appointments and virtually interact with many different types of healthcare providers. But even in today’s hyper-electronic society it took COVID-19 to really cause an explosion in telehealth, so what does that tell us? There is a lot more room for expanding electronic interactions with patients and clients through Apps. So, here are the top five legal concerns should you address when you develop a Healthcare App: read more
State Surgeon General, Scott A. Rivkees, M.D., issued Emergency Order (“EO”) 20-009, which extends EO 20-002 and continues to allow out-of-state MDs, DOs, APRNs and PAs, to provide telehealth services to persons in Florida. EO 20-009 is set to expire June 30, 2020, unless otherwise extended.
Further, EO 20-009 continues to allow Florida licensed controlled substance prescribers (MDs, DOs, APRNs, PAs) to issue renewal prescriptions of controlled substances for non-malignant pain for existing patients. Additionally, EO 20-009 extends until June 30, 2020, a qualified physician’s ability to recertify an existing qualified and certified patient’s continued use of medical marijuana by using telehealth services. read more
The COVID-19 virus has and will probably continue to change the way healthcare providers and business associates interact and help their patients. As many providers are aware, a HIPAA violation is a serious issue, and can cost a healthcare entity large amounts of time and money to respond to any regulatory investigation. Recognizing that the COVID-19 pandemic has strained every corner of the economy and is THE MOST IMPORTANT issue for almost every industry, the federal government has rolled back some HIPAA protections. It is unclear how long these rollbacks will last, and it is possible that some of them may be permanent, but for now healthcare providers and their business associates can take some comfort that they can focus on delivering care and not dealing with overly burdensome regulations and investigations. The major changes include:
Telehealth. Changes include allowing physicians and other healthcare providers to offer telehealth services across State lines, so State licensing issues should not be a concern. Additionally, Providers are essentially free to choose almost any app to interact with their patients, even if it does not fully comply with the HIPAA rules. The HHS allows the provider to use their business judgment, but of course, such communications should NOT be public facing – which means DO NOT allow the public to watch or participate in the visit!
Disclosures of Protected Health Information (PHI). A good faith disclosure of such information will not be prosecuted. Examples include allowing a provider or business associate to share PHI for such purposes as controlling the spread of COVID-19, providing COVID-19 care, and even notifying the media, even if the patient has not, or will not grant his or her permission.
Business Associate Agreement (BAA). As most healthcare providers know, a BAA agreement between a provider and an entity that may have access to PHI is required by law. During the COVID-19 pandemic, the lack of a BAA is not an automatic violation.
In my last post, I promised to keep you updated as to any new orders from the State Surgeon General that would further extend a practitioner’s ability to prescribe refills of non-malignant pain controlled substances using telehealth communications, or a qualified physician’s ability to recertify an existing qualified patient’s use of medical marijuana. The Surgeon General has extended the ability to continue assisting patients with these specific needs (as well as other needs) until May 31, 2020, through the issuance of Emergency Order 20-007 on May 9, 2020.
Keep in mind, that to prescribe a refill of a controlled substance for chronic non-malignant pain, the practitioner must be an MD, DO, APRN, or PA licensed in Florida and designated as a controlled substance prescribing practitioner. Further, to prescribe such controlled substances using telehealth communications during this public health emergency, the patient must be an existing patient of the prescribing practitioner. read more
Earlier today, Governor DeSantis issued Executive Order 20-144 extending the State of Emergency declare in Executive Order 20-52 for another 60 days. Pursuant to the extension of Executive Order 20-52, the State Surgeon General’s Order 20-003 is also extended another 60 days as its expiration is tied to the expiration of Executive Order 20-52. Thus, telehealth providers from other states with valid and unencumbered licenses may continue to provide telehealth services to persons in Florida without registering with the Department of Health. Telehealth services must still be provided using two-way audio and video communications. Audio-only telephone calls are not permitted under Florida’s existing telehealth statute and have not been waived or suspended via the State Surgeon General’s Orders. read more
Florida Healthcare Law Firm is offering advisement by way of webinars to dentists and dental professionals during the Covid-19 pandemic. The firm, which offers legal assistance to medical professionals and businesses, is working in the dental law field and assisting professionals who are currently not working due to the coronavirus so that they can continue to provide assistance to their patients. With education top of mind for the firm, the telehealth and teledentistry campaign is to inform dental professionals on how to directly stay in contact with patients and offer services via audiovisual telecommunications.
“The coronavirus has hit our country hard and most small businesses. Dentistry is at the top of the list and even though dental law is one of our top fields, we wanted to make sure that we adapted to the times and offered a reliable service to our clients and those in the field impacted by this pandemic. Technology allows doctors to connect with patients from anywhere in the world and knowing that you can reach a medical professional who you’ve trusted for years is important, especially right now.” Florida Healthcare Law Firm Representative. “Although dental services have been deemed “non-essential business,” we know how important dental health is. Patients will still have dental questions or concerns during the office shut-downs.”
Because telemedicine is not a service usually offered by dentist offices, many doctors and business owners are finding it difficult to adjust and offer remote service. The law firm has stepped in and is offering free information webinars and other forms of digital content which can provide clarity and guidance for these small businesses so that they can stay open and provide care for their patients. With a limitation elective services, as well as many in the public not wanting to leave their homes right now, telehealth provides a bridge where patients can still get reliable care and advisement from someone they trust. read more
Access to telehealth for Medicare beneficiaries was further increased by the Trump Administration April 30, 2020. These new changes allows all health care professionals eligible to bill Medicare for services to provide services via telehealth communications and to bill the Medicare program for such services. Additionally, certain services may now be provided using audio technology only.
For a list of services eligible for reimbursement by the Medicare Program, including services requiring audio technology only, download here. There are approximately 180 different codes reimbursable by Medicare if provided via telehealth communications.
Breaking News: The State Surgeon General issued Emergency Order 20-004 at approximately 6:01 p.m. on April 15, 2020. Emergency Order 20-004 extends all the provisions of Emergency Order 20-002 until May 8, 2020, unless further extended. Thus, certain practitioners licensed in other states may provide telehealth services to persons in Florida without having to register with the Department of Health. Also, Emergency Order 20-003, issued March 21, 2020, named additional clinical practitioners licensed in other states that may provide telehealth services to persons in Florida. The following professionals that hold an active, valid, and unencumbered license in another state, that are not under investigation or current discipline, and have not had their license revoked in any jurisdiction, may provide telehealth services in Florida: read more
Like most medical practices and businesses in Florida, dental practices have been deemed non-essential except for emergency type services. For good reason, non-life threatening care, surgeries and services are put on hold to help curb the spread of COVID-19, which has left providers with the question of what they can do to maintain and treat patients remotely.
Teledentistry is the use of a telehealth system through a variety of different technologies to deliver virtual health services, including dentistry.
Telehealth includes live video (synchronous), store and forward (asynchronous), remote monitoring, and mobile health. Live video is a live, two-way transmission of audiovisual telecommunications. Store and forward is a recorded file of the patient’s health information. Remote monitoring allows a provider to track patient health data through the use of devices which transmit data to a portal which the provider can securely access. Mobile health is the use of personal devices to share health information and education.
The ADA has echoed local governments calls to alleviate the pressure on emergency services by having healthcare professionals postpone all elective services and non-emergency care. The ADA put forth guidance to help individuals and dentists determine what constitutes a dental emergency, which includes issues that are potentially life threatening and require immediate treatment. Immediate treatment would include stopping bleeding or treating severe pain, infections, or conditions. A more complete guide can be found here. read more