South Florida Hospital News
Sunday October 13, 2019
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May 2014 - Volume 10 - Issue 11

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Telemedicine: Florida Law Remains a Barrier Until Legislation is Passed

With Florida's demographics changing and health care provider shortages on the rise, telemedicine enables patients who are in remote areas of Florida or who do not have access to specialists to obtain services. While the current Florida landscape does not currently support substantive expansion of telemedicine services, given the fact that the percentage of individuals over the age of 65 will increase more than 24 percent by the year 2030 and telehealth could reduce costs by more than $1 billion, momentum in favor of telemedicine has been building over the past few years. Cost savings and economic development opportunities have lead policymakers to spearhead efforts to remove barriers to telehealth through proposed legislation.
 
The coverage of telehealth services is getting much attention in the Florida Legislature. The public and health industry push for telemedicine has made it a top priority of the 2014 Legislative Session. There are currently four bills – SB 70, HB 167, CSHB 751, and SB 1646 – pending in the Legislature that would expand the ability of physicians to provide telemedicine services in the state and be reimbursed for such services.
 
Against this backdrop of legislative activity, Florida already regulates the practice of telemedicine. Section 64B8-9.014(1), F.A.C., (the "Rule"), states that "[p]rescribing medications based solely on an electronic medical questionnaire constitutes the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent physicians as being acceptable under similar conditions and circumstances, as well as prescribing legend drugs other than in the course of a physician's professional practice."
 
One of the aspects of the Rule that has caused confusion is the requirement for a "physical examination" in order to prescribe medications or other treatments using telemedicine. Specifically, must there first be a face-to-face encounter between the prescribing physician and the patient? A recent Declaratory Statement issued by the Florida Board of Medicine (In re: Petition for Declaratory Statement of Jose Garcia, M.D., Final Order No. DOH-14-0226-DS-MQA (2/17/2014)), provides some guidance on this question.
 
In Garcia, the Board reviewed the provisions of Section 64B8-9.014 in light of Dr. Garcia's proposal to use telemedicine to treat patients located in rural areas or during hours when his offices were not open. The Board observed that the Rule "does not set forth a blanket prohibition on the use of telemedicine technology to provide medical care to patients." Accordingly, based on the information in his Petition, the Board concluded that Dr. Garcia's "proposed practice plan … does not reveal any practices that would violate" the Rule.
 
Although a cursory reading of Garcia may lead some to conclude that the answer to the question raised above is "no", an in-person examination is not a prerequisite to treating a patient via telemedicine, a closer reading reveals a that to be an incomplete understanding of this decision. Unfortunately, the Board chose not to include a statement of the facts it was asked to consider in this Declaratory Statement. Thus, a prudent reading suggests that the Board views a prior face-to-face encounter as a prerequisite to treating a patient by means of telemedicine. Some of the pending legislation addresses this very issue but until such legislation is passed, one should view the phrase "documented patient evaluation, including history and physical examination" to include a prior face-to-face encounter with the patient.
 
Telehealth is emerging as an integral part of the healthcare delivery system. Physicians, hospitals, medical homes, and accountable care organizations need to evaluate telehealth and determine how to integrate this technology into their business and be ready to implement changes when legislation is passed.
Stephen H. Siegel is Of Counsel for the statewide law firm Broad and Cassel’s Fort Lauderdale and Miami offices. He is a Florida Bar Certified - Health Law Attorney and can be reached at shsiegel@broadandcassel.com or (305) 373-9424. Heather Miller is senior counsel in the Firm’s Boca Raton office working with both hospitals and large medical groups. She can be reached at (561) 483-7000 or hmiller@broadandcassel.com.
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