By: Dave Davidson
The opportunities to use technology to provide healthcare services seem to be growing as fast as technology itself. This is especially true in the area of care being provided by a “remote” provider. In fact, an AMA study released in May 2019 indicated that telehealth was the fastest growing “place of care” in the country, outpacing urgent care centers, retail clinics, and ambulatory surgery centers. Unfortunately, the laws governing telehealth have not always kept up with the pace of that growth, and questions remained about how it could be provided in Florida. However, the Florida legislature did something about that this year, by passing House Bill 23, which Governor Ron DeSantis signed into law on June 25, 2019. The act, which is primarily codified in Florida Statutes §456.47, took effect on July 1, 2019 and answers many outstanding questions. These questions are addressed below.
What Constitutes Telehealth in Florida and Who can Practice It?
The new law sets out a straightforward, and broad, definition of telehealth. Basically, telehealth in Florida is the use of telecommunication technology by a telehealth provider to provide healthcare services. These services can include assessment, diagnosis, consultation, treatment, monitoring, transfer of medical data, education, public health services and health administration. Voice-only telephone calls, emails and faxes are specifically excluded from the definition. Obviously those activities are still permissible, but they fall outside the definition.
The statute’s designation of providers who can practice telehealth is also very broad. Any licensed or certified healthcare provider can practice telehealth, so long as the services rendered are within the scope of the provider’s license or certification. Out-of-state providers who do not have Florida licenses may also register with the state in order to provide telehealth services to patients in Florida.
What is the Standard of Care for Telehealth Services?
The standard of care for telehealth services is the same standard that applies to the provider when rendering face-to-face care. For example, if the standard of care for a physician who is physically examining a patient who is reporting the sudden onset of the worst headache she’s ever had in her life, is to order a CT scan of the head, then a physician conducting that exam via telehealth will be held to that same standard.
One interesting exception to the telehealth standard of care is that if a telehealth provider evaluates a patient sufficiently to diagnose and treat a patient, the telehealth provider is not required to research the patient’s medical history or conduct a physical examination before using telehealth resources. That makes some sense, but what about a physician who uses telehealth to correctly diagnose and treat a sprained toe, but fails to discover in the medical history that the patient is diabetic? If a malpractice case was filed in that situation, my guess is that it would be left to the a jury to determine whether a diagnosis of a foot injury without finding out if a patient is diabetic constitutes “sufficient diagnosis and treatment.” I do not believe this exception will be used to circumvent the standard of care.
Is There Anything that Cannot be Done via Telehealth?
Despite the broad authority granted to telehealth providers in the new statute, certain care and treatment cannot be rendered via telehealth. These services are: treatment for a psychiatric disorder, inpatient treatment at a hospital, hospice services, and treatment of a nursing home resident. Otherwise, so long as the provider stays within the scope of his or her license or certification, telehealth remains a practice option.
What About Medical Records?
As is the case with the standard of care, medical records for telehealth must be maintained in the same manner as medical records for all other care and treatment. Everything that is generated as part of the telehealth encounter must be kept in the medical record, and the record must be complete and accurate. Telehealth records are afforded the same level of confidentiality as any other medical record, and must be maintained in the same manner.
Telehealth is rapidly growing throughout the country. Patients and providers are seeing the convenience of such a resource, and the ways it can enhance patient care. With House Bill 23, the Florida legislature has established a clear and workable framework for telehealth in the state. Here’s hoping this opportunity truly does enhance the health of our communities.