Monday, April 29, 2019, the Florida House and Senate came to agreement on a new Telehealth bill (HB 23). If signed by Governor DeSantis, the bill will become effective July 1, 2019.
The bill creates two new statutes: Section 456.47 and Section 627.42396, and amends Section 641.31.
Section 456.47 sets forth the standards of practice for telehealth providers, authorizes the use of telehealth encounters for patient evaluations, and allows certain providers to prescribe certain controlled substances in limited circumstances. The bill also allows non-physician providers to use telehealth without being deemed to be practicing medicine without a license. Further, the bill sets forth record keeping requirements and registration for out-of-state telehealth providers. It authorizes the Department of Health to establish rules for telehealth, including exemptions from registration requirements, and to set up disciplinary action against telehealth providers that violate the law or rules.
So, lets break this down a bit by starting with the definition of Telehealth included in new Section 456.47:
“Telehealth” means 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. The term does not include audio-only telephone calls, e-mail messages, or facsimile transmissions.
Excluding audio-only telephone calls, e-mail messages, or facsimile transmissions is similar to the language defining telemedicine in Rule 64B8-9.0141(1), Florida Administrative Code.
The definition of “Telehealth Provider” makes it clear that non-physician providers may provide telehealth services:
“Telehealth Provider” means any individual who provides health care and related services using telehealth and who is licensed or certified as a certified behavior specialist; EMT, Paramedic, EMS transport; Acupuncturist; Allopathic Physician; Osteopathic Physician; Physician Assistants; Chiropractic Physicians; Podiatrists; Optometrists; APRNs, RNs, LPNs, CNAs; Pharmacists; Dentists and Dental Hygienist; Midwives; Audiologists and Speech/Language Pathologists; Occupational Therapists and Occupational Therapists Assistants; Radiology Assistants and General Radiographers; Respiratory Therapists or Respiratory Care Practitioner; Dietitians/Nutritionists and Nutrition Counselors; Athletic Trainers; Orthotists, Prosthetists, and Pedorthists; Electrologists; Massage Therapists; Clinical Laboratory Personnel; Opticians and Hearing Aide Specialists; Physical Therapists and Physical Therapy Assistants; Psychologists; Clinical Social Workers, Marriage and Family Therapists, and Mental Health Counselors; anyone who is licensed under a multi-state health care licensure compact of which Florida is a member state; or a licensed or certified professional who is registered under and complies with registration for out-of-state telehealth providers under subsection 4 of Section 456.47.
Thus, new Florida telehealth Section 456.47 encompasses many health care providers from a variety of professional disciplines. To put it bluntly, it’s a very expansive and inclusive list of providers according to the language of the bill; however, one has to wonder whether such an expansive list is practical and what potential Pandora’s box might be opened. Only time will tell.
Each provider authorized to provide telehealth services must practice within that provider’s practice act and the prevailing professional standards of practice the same as if the service had been rendered in person to patients in Florida. This implies that for out-of-state providers wishing to provide telehealth services to patients in Florida, the care rendered must meet the practice standards set forth in Florida Statutes and Administrative Codes.
The new statute goes on to state that patient evaluations may be performed via telehealth, and the provider is not required to research a patient’s medical history or conduct a physical exam before using telehealth, if the telehealth encounter is sufficient to diagnose and treat the patient. Keep in mind, that the professional standards of practice apply the same as if the patient is seen in person. So if there is anything about a patient’s condition or proposed treatment where a physical examination would be more appropriate, the telehealth provider would be wise to conduct an in-person physical prior to rendering a diagnosis and prescribing treatment via the telehealth process.
The provisions in the new statute regarding controlled substances are similar to the provisions contained in Rule 64B-9.0141(4), Florida Administrative Code. However, Rule 64B-9.0141(4) only allowed a telehealth provider to prescribe controlled substances for the treatment of psychiatric disorders and for patients hospitalized in a facility licensed pursuant to Section 395, Florida Statutes. The new statute adds to this by allowing prescribing of controlled substances via telehealth to persons receiving hospice services or for the treatment of a nursing home facility resident. Practitioners should exercise caution when prescribing controlled substances via telehealth to make sure they are not violating any federal law concerning controlled substance prescribing via telehealth.
Medical records documentation of a telehealth encounter must use the same standard for documenting in-person encounters. Just like other medical records, the telehealth records, including audio, video, electronic and other records are confidential under Florida Statutes 395.3025(4) and 456.057.
Out-of-State Telehealth Providers
New statute 456.47 provides for registration of out-of-state telehealth providers. The provider that is not licensed in Florida may provide telehealth services to a patient in Florida using telehealth if the provider registers with the appropriate board or Department of Health if no board and provides health care services within the applicable scope of practice established pursuant to Florida Statutes or Administrative Codes. The out-of-state telehealth provider must submit an application to Department of Health on prescribed forms and must have an active, unencumbered, unrestricted license issued by another state, the District of Columbia, or a possession or territory of the US. Such license must be substantially similar to a license that would issue from Florida. Additionally, an out-of-state telehealth provider must not have had any disciplinary action against his/her license within the 5-year period preceding application to be an out-of-state telehealth provider. The out-of-state telehealth provider must designate, on forms prescribed by the Department of Health, a registered agent for service of process in Florida. Moreover, the out-of-state telehealth provider must maintain professional liability insurance that covers telehealth services in Florida equal to or greater than the amounts required for Florida licensed practitioners.
In addition to the above-mentioned requirements, HB 23 requires certain disclosures on an out-of-state telehealth provider’s website, requires the out-of-state telehealth provider to report any restrictions or disciplinary action on his/her license (for any state the out-of-state telehealth provider may be licensed in) subsequent to his/her application to Florida to become a registered out-of-state telehealth provider. HB 23’s aim is to ensure that out-of-state telehealth providers are held to the same, if not higher, standards than practitioners licensed in Florida.
Providers licensed in other states will not need to register to become out-of-state telehealth providers if telehealth services rendered are for 1) emergency purposes or 2) consults with a Florida licensed practitioner who has authority over the diagnosis and care of a patient in Florida.
Insurance Coverage (Parity of Payment is not Mandatory)
HB 23 creates new Section 627.42396 which sets forth that contracts between health insurers of major medical comprehensive coverage and telehealth providers must be voluntary and must establish mutually acceptable payment rates for telehealth services. If the payment rates for telehealth services are different from the payment rates for similar services provided without telehealth, the telehealth provider must acknowledge and express agreement with the different rates of pay. Unfortunately, the parity of payment many providers were hoping for did not make it into the final version of HB 23. However, through negotiations, telehealth providers may be able to achieve parity of payment for similar services rendered with or without telehealth.
HB 23 amends Section 641.31, related to health maintenance organizations issuing major medical coverage, to reflect language in new Section 627.42396 regarding payment for telehealth services.
While HB 23 provides additional guidance beyond Rule 64B8-9.0141, Florida Administration Code, as to whom may render telehealth services; a process for registration for out-of-state telehealth providers; and mandatory professional liability insurance for out-of-state telehealth providers, it does not squarely address parity in payment for similar services that may be rendered using telehealth. It will be up to telehealth providers to closely review payment rates for telehealth services to determine whether agreeing to such rates is in the telehealth provider’s best interest. Further, if HB 23 becomes law, will it expand access to health care services if partiy of payment is lacking?
As mentioned above, the list of providers that may provide telehealth services is very expansive. Only time will tell how this expanded list will affect the use of telehealth services and whether such an expanded list has practical application in rendering telehealth services.
Moreover, in-state and out-of-state telehealth providers should be aware of HB 23, should Governor DeSantis sign this bill into law. Telehealth communications will require audio and video technology to lawfully rendered telehealth services to patients in Florida. Telehealth providers must be able to render care within the practice standards set forth in Florida Statutes and Administrative Code, otherwise, they will subject themselves to possible disciplinary action.