South Florida Hospital News
Friday February 26, 2021
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October 2013 - Volume 10 - Issue 4
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Florida Telemedicine Law: Time to Embrace Advances in Telemedicine and Address Legal Barriers

The use of technology and telecommunications in healthcare seems to evolve at a fast pace, but telemedicine laws and regulations are slow to catch up. Most would agree that telemedicine provides invaluable benefits to providers and their patients, such as increased access to healthcare. But there are still some ambiguities that are not fully addressed in Florida’s laws, which may have the unintended effect of hindering the progress of the use of telemedicine. As well, there are no laws that mandate insurance coverage or reimbursement for telemedicine services. The time seems right for an expansion of telemedicine laws and regulations in Florida.
 
The American Telemedicine Association tracks recent changes to State telemedicine legislation (ATA 2013 State Telemedicine Legislation Tracking chart is available on their website). For example, ATA reports that there are currently 21 states that have enacted legislation mandating private insurance coverage for telemedicine services. Florida is not one of them.
 
Presently, Florida laws provide no statutory definition of “telemedicine” and there are only two regulations that provide guidelines for the use of telemedicine. The Board of Medicine and Board of Osteopathic Medicine have promulgated standards for the practice of telemedicine, respectively. Under the Board of Medicine regulation, telemedicine includes prescribing legend drugs to patients via Internet, telephone, and/or facsimile. And, the regulation provides the parameters for treatment recommendations and prescribing legend drugs.
 
However, there are few reported cases that provide guidance to address certain ambiguities in the regulations. Recently, the Board of Medicine considered the issue of telemedicine in a request for declaratory statement, In Re: Petition for Declaratory Statement of Jack Daubert, M.D., F.A.C.S. (08/13/2013). Dr. Daubert, a Florida ophthalmologist, petitioned the Board to consider whether his proposed usage of technology to perform remote eye exams would be in compliance with applicable state regulations. His petition noted that “[t]he Florida Department of Health has issued standards for prescribing in connection with the provision of remote care (telemedicine), but no specific guidelines or standards for the general use of technology in connection with the remote provision of healthcare services.” The Board’s final order indicated that it was presented with insufficient information to make an informed determination and declined to issue a declaratory statement at this time. While the Board has been supportive of the concept of telemedicine, there remains a paucity of cases interpreting or analyzing current telemedicine regulations.
 
There may be some welcomed changes to Florida’s telemedicine laws in the near future, as Florida lawmakers revisit the issue in the 2014 Legislative Session. A new bill has been filed (SB 70), which may expand Florida’s current telemedicine laws, particularly in the area of insurance coverage for telemedicine; an area that seems ripe for new legislation. The bill's proposed language could provide the desired clarity with respect to the ambiguities and broaden the scope and use of telemedicine. The bill contains, among other things, the following proposed provisions: (a) enacting a statutory definition of “telemedicine”; (b) mandating private health plans and Medicaid to provide coverage and reimbursement for services without the prerequisite of the face-to-face contact between a health care provider and patient; (c) clarifying that the use of telemedicine technology under the supervision of another health care practitioner may not be interpreted as practicing medicine without a license; (d) authorizing the Department of Health to adopt rules and requiring the department to repeal any rules that prohibit the use of telemedicine; and (e) requiring the Department to conduct a study on options for implementing telemedicine for certain services.
 
Technology and telecommunication in healthcare continues to evolve at a rapid pace and the time seems right for the Florida healthcare industry and lawmakers to embrace these advances in telemedicine and address the legal barriers that may hinder its progress.

Elizabeth Perez is a health law attorney, Of Counsel, with the Fort Lauderdale office of the statewide law firm Broad and Cassel. She can be reached at (954) 764-7060 or epperez@broadandcassel.com.

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