March 28, 2014
The current rules on telemedicine were adopted by the state of Florida more than ten years ago and have largely failed to keep up with the changing attitudes of the public, specifically the public’s trust in the use of technology. In 2003, the state issued standards for telemedicine prescribing practices for medical doctors and doctors of osteopathy. Now, Florida is recognizing the important role that remote medicine will play in the coming years and initiated a rule that allowed the practice of medicine in Florida to move a little farther into the 21st century.
On March 12, 2014, a new rule with updated standards for telemedicine practice became effective. This final rule, 64B8-9.0141, Florida Administrative Code, was adopted by the Florida Board of Medicine and the Florida Board of Osteopathic Medicine.
The state legislature is also currently considering further regulation. On March 24, 2014, the Florida House Health Care Appropriations Subcommittee voted 10 to 3 to approve the use of telemedicine in Florida.
What is Telemedicine Under the Rule?
The new rule is located at 64B8-9.0141, Florida Administrative Code, and defines telemedicine as:
the practice of medicine by a licensed Florida physician or physician assistant where patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic communications. Telemedicine shall not include the provision of health care services only through an audio only telephone, email messages, text messages, facsimile transmission, U.S. Mail or other parcel service, or any combination thereof.
Throughout the process the Board stated that in no way would telemedicine alter the standard of care for the provision of health care services. The new rule specifically states:
The standard of care, as defined in s. 456.50(1)(e), Florida Statutes, shall remain the same regardless of whether a Florida licensed physician or physician assistant provides health care services in person or by telemedicine.
Rule 64B8-9.0141(2), Florida Administrative Code.
Those providing telemedicine services are solely responsible for the safety and adequacy of the equipment they use. Further, the equipment being used must allow the provider to garner the same information that would have been available during a physical examination such that the provider could meet or exceed the standard of care.
The Rule did not include a list of technologies that it deemed safe for use in telemedicine. The purpose of this omission is to allow the rule to be broad enough to permit the provider to use whatever technology that is sufficiently encrypted and compliant with the Health Insurance Portability and Accountability Act (HIPAA) of 1996.
Still No Controlled Substance Prescribing.
Although earlier drafts of the rule permitted the prescriptions of extremely limited quantities of controlled substances in certain situations, the final rule eschewed permitting such prescribing. During discussion the committee members did state that the issue would be next on their list to address.
Other Provisions of the Rule.
Several other parts of the rule are worth noting:
- Telemedicine is sufficient to establish a physician-patient relationship;
- All regulations regarding patient confidentiality and record keeping are still applicable to telemedicine;
- The rule specifically exempts out medical advice given by emergency responders including EMTs, paramedics, and emergency dispatchers; and
- The rule also does not apply to physicians or physician assistants providing emergency medical care to conditions “requiring immediate medical care.”
Now that there is a more substantial rule in place, those practicing or interested in practicing telemedicine will have some guidance in moving forward. More comprehensive regulations in telemedicine might soon be on the horizon. Both the Florida House and the Florida Senate are considering a bill entitled the “Florida Telemedicine Act.” The act, if passed, will create requirements for provider registration and health plan reimbursements for telemedicine services.
If you are practicing telemedicine or are interested in expanding your practice to include it, contact an experienced health care attorney to assist you with resolving the legal issues surrounding the remote practice of medicine.
What do you think of the new standards for telemedicine? Do you think the Florida Legislature will pass the telemedicine bill? What is your biggest concern if the telemedicine bill does pass? Please leave any thoughtful comments below.