South Florida Hospital News
Thursday June 27, 2019
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June 2019 - Volume 15 - Issue 12

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Telehealth in Florida; Has Its Day Finally Come?

The 2019 session of the Florida Legislature addressed an issue that has become increasingly problematic for physicians trying to deliver cost effective, quality, and responsive medical services- the growing demand for telehealth. In addition to potential cost and timeliness benefits, the public’s acceptance of and expectation for telehealth services reflects the increasing trend towards consumerism in this industry. Specifically, the tendency to provide health care services in locations that are responsive to consumers’ preferences, while protecting their safety.

The 2019 Florida Legislature tried to address many of the questions surrounding the delivery of professional medical services using telehealth by adopting HB 23, which created § 456.47, Florida Statutes- Use of telehealth to provide services (“Telehealth Act”).
 
The Florida Legislature elected to use the term “telehealth”, rather than “telemedicine”, to mean “… 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.” Thus, the Florida Legislature recognized that telehealth may be employed in a wide variety of situations.
 
The definition of who qualifies as a “telehealth provider”, is surprisingly broad and includes any individual who
1. provides health care and related services using telehealth and who is licensed or certified under one of variety of Florida statutory schemes;
2. is licensed under a multi-state health care licensure compact of which Florida is a member state; or
3. is licensed in another state, providing services to a patient in Florida, registered under and complies with the requirements of the applicable Florida board or department, and meets Florida’s financial responsibility requirements.
 
Historically, the Florida’s boards, particularly the Board of Medicine, have taken the position that in order to provide telehealth services to a patient located in Florida, the rendering physician must be licensed in this state. Clearly, that is no longer the case.
 
The Telehealth Act also addresses several issues that have arisen as this method of delivering health care services has evolved:
- Standard of Practice. A telehealth provider is expected to practice “in a manner consistent with his or her scope of practice … for a health care professional who provides in-person health care services to patients in this state.” Thus, the standard of care is no different whether treating a patient using telehealth or in-person.
- Place of Service. The place of service where a professional telehealth service is rendered is the location where the patient is located at the time services are performed or in their county of residence in Florida. This is likely to prove to be problematic. For example, imagine while driving through Palm Beach County a resident of Miami-Dade County engages in a telehealth consultation with a telehealth provider located in Hillsborough County, who allegedly misreads/misinterprets/fails to adequately explain a test result; would the place of service for any resulting malpractice suit be Palm Beach or Miami-Dade County?
The Telehealth Act represents the first step in clarifying the use of this health care delivery method in Florida. However, it is not as comprehensive as some may have hoped. For one thing, there still are limitations on the services physicians may deliver via telehealth. For example, a qualified ordering physician still may not authorize a qualified patient to obtain or reauthorize that patient’s continued use of medical cannabis.
 
Probably more disappointing, the Telehealth Act did not clearly address a major hurdle to the development of this delivery modality in Florida reimbursement. The Act only requires a telehealth provider and payer to develop “mutually acceptable payment rates or payment methodologies for” telehealth services. This, essentially, is what Florida’s physicians have been doing historically. The Act does not require payers to reimburse physicians for providing telehealth services; thus, a payer may elect not to cover these services. The Act also does not require parity or any relationship between what a payer reimburses a physician for an in-person visit and reimbursement for a telehealth visit. Thus, the Legislature failed to address an issue many view as critical to the development of a robust telehealth delivery system. 
 
The good news is the Florida Legislature will be back in 2020, and members will have another opportunity to address the state of telehealth in Florida.

Stephen Siegel, Partner in the Coral Gables office of Lubell/Rosen, can be reached at (305) 298-8640 or shs@lubellrosen.com.

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