Multiple, rapid changes to the regulation of telemedicine services have made telehealth a grey area for many Florida-based practitioners and out-of-state providers. Many healthcare providers are struggling to adapt to telehealth services. Although telemedicine is becoming firmly established due to the current global pandemic, there are still many legal concerns.
Definition of Telehealth
Regulatory agencies currently define telehealth as the use of audio and visual communications technology by medical providers to provide healthcare services. They may also refer to telehealth as telemedicine, remote healthcare, virtual healthcare, or e-visits.
Telehealth includes, but is not limited to, the following:
- Assessing and diagnosing patient health and conditions
- Consulting with and treating patients
- Monitoring medical data transfers
- Educating patients and professionals
- Administering public health services
Telehealth typically does not include audio-only telephone calls. These rules, for the most part, do not apply during the COVID-19 pandemic. Telehealth also doesn’t include email messaging, chat messaging (except for specific mental health applications), or fax transmissions.
There are various types of licensed health professionals that may practice as telehealth providers, ranging from emergency medical technicians to dentists, orthopedists, family and marriage counselors, select social workers, and mental health providers. Nurses, doctors, midwives, pharmacists, radiologists, audiologists, dietitians, and chiropractors also qualify and a long list of other healthcare specialists.
A telehealth provider may use telehealth for patient evaluations. If the assessment is sufficient to diagnose and treat the patient, the provider can forego researching the patient’s medical history or conducting a physical examination. They may move immediately to providing health care services and treatment, as indicated by the evaluation.
Telehealth providers must conduct telehealth visits according to the same standards expected for in-person healthcare services. They must remain consistent and within their scope of practice and prevailing professional standards, including the handling and maintenance of patient medical records, which must be kept confidential.
Recent Changes to Telemedicine in Florida
Telehealth services have been in use in Florida for years, but specific regulation of telemedicine has materialized slowly. The following Laws and Orders comprise the most recent changes, additions, and wavers regarding telemedicine use in Florida.
July 1, 2019: Chapter 2019-137
Florida’s 2019 legislative session directly addressed telehealth options. The legislature passed Chapter 2019-137, Laws of Florida, which was signed by the Governor on June 25, 2019. The Law went into effect on July 1, 2019.
Chapter 2019-137 established standards of practice for telehealth services, including but not limited to:
- Patient evaluations
- Recordkeeping and patient privacy
- Prescription of controlled substances
- Authorization for out-of-state health care practitioners
March 6, 2020: 1135 Waiver
Under the Coronavirus Preparedness and Response Supplemental Appropriations Act, the Centers for Medicare & Medicaid Services (CMS) expanded access to telehealth services for Medicaid beneficiaries. The step aims to limit COVID-19 spread while allowing remote access to health services. It is made possible by the 1135 waiver authority.
Telemedicine options let patients get the health services they need without physically traveling to a clinic, doctor’s office, or hospital. Formerly, Medicaid didn’t cover most aspects of telehealth. It was also difficult in some cases to provide telehealth services and comply with HIPAA requirements for patient privacy.
The 1135 waiver for temporary and emergency regulatory flexibilities includes:
- Approval for Medicare to pay for telehealth visits conducted using audio-visual services such as digital check-ins, consultations, and e-visits. Patients may receive care from their place of residence.
- Cost-sharing waivers or reductions for telehealth visits. These waivers and reductions cover services subsidized through healthcare programs at federal levels. The HHS Office of Inspector General (OIG) oversees this flexibility.
- Enforcement discretion and penalty waivers for certain HIPAA violations. This discretion covers healthcare providers who deliver telehealth services using non-public platforms such as Facetime or Skype. The HHS Office for Civil Rights (OCR) oversees this section.
- Note that healthcare providers should not provide telehealth services through public-facing communication technologies. Examples of public-facing technologies include Tiktok, Twitch, and Facebook Live.
Despite the discretion regarding enforcement and potential waivers for HIPAA violations, providers should be careful not to violate HIPAA if at all possible. Violations can still lead to problems, and providers should seek out and follow professional legal advice.
March 9, 2020: Executive Order 20-52
The Governor of Florida signed Executive Order 20-52, declaring that a state of emergency existed in Florida. The Order allowed waiving of certain regulatory practices during the crisis and included specific relaxation of regulations. Specifically, the Order speaks to the dispensing of medications and rendering of healthcare services.
March 16, 2020: Emergency Order 2-002
Shortly after the signing of Executive Order 20-52, Florida’s Surgeon General issued Emergency Order 20-002, modifying telehealth requirements. The Order included the following:
- Permission for specific out-of-state healthcare professionals to temporarily provide telehealth services to Florida residents in light of the COVID-19 pandemiic.
- Permission for specific Florida licensed physicians to substitute telehealth services for in-person examinations in limited circumstances.
- Permission for healthcare professionals not licensed in Florida to provide telehealth services to Floridians (applicable to specific professionals with a valid, clear, and unrestricted license who meet additional requirements)
- Permission for practitioners that prescribe controlled substances to issue 30-day renewal prescriptions for Schedule II, III, or IV controlled substances. These exceptions apply to providers’ existing patients for chronic pain treatment with a telehealth visit in place of a physical examination.
March 21, 2020: Emergency Order 20-003
Further relaxation of strict compliance with healthcare statutes and rules was provided by Emergency Order 20-003. The Order included the following:
Licensure renewal extension for healthcare providers. Any professional licenses issued by DOH or associated boards or councils will not require renewal until May 31, 2020.
- Remote nursing programs. Nursing education and assistant training allow supervised remote live videoconferencing and simulations to complete instruction hours.
- Expanded licensure exceptions for licensed telehealth providers outside the state of Florida. The licensure waiver includes particular social workers, psychologists, mental health counselors, and various classes of therapists, in addition to the formerly approved medical professionals, which included medical doctors (MDs), osteopathic doctors (ODs), nurse practitioners (NPs), and physician assistants.
March 31, 2020: Emergency Order 20-004
Emergency Order 20-004 directly addressed the limitation of the availability of telehealth services due to the audio-visual requirement. The order permits an audio-only health visit if the telehealth provider documents in the patient’s medical record that other telehealth methods are unavailable on the patient’s end. The documentation must include:
- The steps they used to verify the patient’s identity
- Confirmation that the telehealth provider can provide treatment through a telehealth platform
- The name of the platform used to deliver telehealth services
- Verification that the provider asked the patient if they could access a smartphone, tablet, desktop, or laptop computer, and that the answer was negative
- Providers needing to provide prescribing services are allowed to use an audio-only telehealth option in place of an audio-visual visit. However, they must follow the guidelines outlined above and meet the additional requirements.
- A controlled substance prescribing practitioner may issue a renewal prescription for a controlled substance listed as Schedule II, III, or IV under chapter 893, to treat only the following conditions:
- Chronic nonmalignant pain (for existing patients only)
- Opioid use or abuse disorders (for existing patients only)
- Other substance use or abuse disorders (for existing patients only)
- Psychiatric or mental health disorders (for existing patients only)
- Certain hospital inpatients
- Patients in a hospice setting
- A resident of a nursing home or assisted living facility
The telehealth visit or audio-only visit relieves the need for an in-person physical examination. Subsequent Emergency Orders and Executive Orders have reiterated these guidelines and extended their period of effectiveness.
Implications for Healthcare Providers
Healthcare providers must remember that the situation continues to evolve swiftly across the state. Legal changes and waivers are adopted or put in effect frequently. It may be advisable to seek legal counsel to ensure that actions taken during the pandemic don’t cause legal issues later.
- Emerging or future legal developments may hinge on misunderstandings or lack of clarity surrounding any of the following:
- Providing telehealth services across new and emerging communication technology platforms
- Staying in compliance with HIPAA and maintaining patient privacy in an era of telemedicine
- Prescribing of controlled substances using telehealth visits to replace physical examinations
- Billing Medicaid and other government agencies for telehealth services.
- Providing remote medical services as out-of-state providers
- Licensure issues due to delays in renewals
Healthcare providers must take steps now to mitigate future risk. Adverse impacts from the coronavirus can spawn many different types of litigation. Regulatory parameters are changing quickly, and legal representation can shield you from making costly errors.
Our attorneys serve as special counsel South Florida courts, providing litigation, trial, and appellate support. We assist clients with detection and compliance, fraud prevention, and transactional quagmires that can arise from regulatory confusion. We can help if you are concerned about kickbacks, fee-splitting, balance billing, or miscoding.
Contact our healthcare legal experts at Tache Bronis at 305-537-9565 for a free, no-obligation consultation. We will analyze your exposure to litigation or regulatory consequences due to aberrations, and help you stay compliant with healthcare guidelines and regulations during this challenging time.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Copyright© 2020. Tache Bronis. All Rights Reserved.
Tache, Bronis, Christianson and Descalzo, P. A.
150 S.E. 2nd Avenue
Miami, FL 33131