Florida Telemedicine and Telemedicine Prescribing Standards Effective

Florida’s Standards for Telemedicine Practice and Standards for Telemedicine Prescribing Practice are now effective. There are four new Florida regulations:

1. Florida Board of Medicine, Standards for Telemedicine Practice (Rule 64B8-9.0141).

2. Florida Board of Medicine, Standards for Telemedicine Prescribing Practice (Rule 64B8-9.014).

3. Florida Board of Osteopathic Medicine, Standards for Telemedicine Practice (Rule 64B15-14.0081, modified by Rule 64B15-14.0081-1).

4. Florida Board of Osteopathic Medicine, Standards for Telemedicine Prescribing Practice (Rule 64B15-14.008).

The Florida medical board and osteopathic board versions of telemedicine and telemedicine prescribing standards are fairly comparable.

Florida’s regulations define telemedicine as follows:

“Telemedicine” means 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.

The Telemedicine Practice standards provide that:

  • Standard of care in telemedicine : the standard of care remains the same regardless of whether a Florida licensed physician or physician assistant provides health care services in person or by telemedicine.
  • Telemedicine equipment and technology: Florida licensed physicians and physician assistants providing health care services by telemedicine are responsible for the quality of the equipment and technology employed and are responsible for their safe use. Telemedicine equipment and technology must be able to provide, at a minimum, the same information to the physician and physician assistant which will enable them to meet or exceed the prevailing standard of care for the practice of medicine.
  • Prescription of controlled substances: Controlled substances shall not be prescribed through the use of telemedicine.
  • Telemedicine confidentiality and record-keeping : The practice of medicine by telemedicine does not alter any obligation of the physician or the physician assistant regarding patient confidentiality or recordkeeping.
  • Physician-patient relationship: A physician-patient relationship may be established through telemedicine.
  • Review of medical data unaffected by telemedicine standards: Nothing contained in the telemedicine rule prohibits consultations between physicians or the transmission and review of digital images, pathology specimens, test results, or other medical data by physicians or other qualified providers related to the care of Florida patients.
  • Emergency care via telemedicine: The telemedicine rule does not apply to emergency medical services provided by emergency physicians, emergency medical technicians (EMTs), paramedics, and emergency dispatchers. Emergency medical services are those activities or services to prevent or treat a sudden critical illness or injury and to provide emergency medical care and prehospital emergency medical transportation to sick, injured, or otherwise incapacitated persons in this state.The telemedicine rule also does not apply where a physician or physician assistant is treating a patient with an emergency medical condition that requires immediate medical care. An emergency medical condition is a medical condition manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical attention will result in serious jeopardy to patient health, serious impairment to bodily functions, or serious dysfunction of a body organ or part.

The Telemedicine Prescribing Practice standards provide that:

  • Telemedicine or e-prescribing based on an electronic questionnaire: Prescribing 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
  • Requirements for treatment recommendations and prescriptions: Physicians and physician assistants shall not provide treatment recommendations, including issuing a prescription, via electronic or other means, unless the following elements have been met: (a) A documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed. (b) Discussion between the physician or the physician assistant and the patient regarding treatment options and the risks and benefits of treatment. (c) Maintenance of contemporaneous medical records meeting the regulatory requirements.
  • Emergencies: The provisions of this rule are not applicable in an emergency situation. For purposes of this rule an emergency situation means those situations in which the prescribing physician or physician assistant determines that the immediate administration of the medication is necessary for the proper treatment of the patient, and that it is not reasonably possible for the prescribing physician or physician assistant to comply with the provision of this rule prior to providing such prescription.
  • Consultation exception: This rule does not prohibit patient care in consultation with another physician who has an ongoing relationship with the patient, and who has agreed to supervise the patient’s treatment, including the use of any prescribed medications, nor on-call or cross-coverage situations in which the physician has access to patient records.
  • Definition of telemedicine: In the medical board regulation, the term “telemedicine” is defined to include “prescribing legend drugs to patients through the following modes of communication: (a) Internet; (b) Telephone; and (c) Facsimile.” This definition is absent in the osteopathic board’s regulation.

These regulations, while they do not completely eviscerate concerns of telemedicine and online health companies, as well as those involved in m-health, mobile medical apps, or other remote healing technologies, do ease the regulatory burden on telemedicine in Florida, in these ways:

  • Standard of care is the same across the board (physical or virtual / mobile medicine), just as in California and various other states. The same goes for informed consent.
  • Physician assistants now can explicitly also use telemedicine.
  • Physicians can establish a physician-patient relationship via telemedicine (and by implication, without a face-to-face initial visit, subject to standard of care considerations).
  • Prescribing via an electronic medical questionnaire only remains prohibited, as it does in other states. A documented patient evaluation (including history and physical examination) is necessary for prescribing.
  • As in other states, the consultation exception remains valid—i.e., a physician in the remote state who has an ongoing relationship with the patient may consult with the Florida physician, or provide on-call or cross-coverage where the remote state physician has access to the patient records.

When you are developing a telemedicine, online health, m-health, or electronic medical platform, contact our healthcare legal team for appropriate legal and regulatory telemedicine or telehealth advice.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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