United States: Florida Legislature Considers But Fails To Pass Telemedicine Legislation

Last Updated: September 14 2018
Article by Morris H. Miller

Morris H Miller is a Partner in Holland & Knight's Tallahassee office

During its 2018 session, the Florida Legislature considered, but did not pass, Senate Bill 280, which would have provided that a physician may perform a patient evaluation via telemedicine and that, if the physician is able to conduct such an evaluation that is sufficient to diagnose and treat the patient, the physician is not required to research the patient's medical history or conduct a physical examination of the patient before using telemedicine to provide services to the patient.

Under the Florida Patient Self-Referral Act of 1992, Section 456.053, Florida Statutes (Florida Act), a physician who has an ownership interest in a group practice is prohibited from referring a patient to another provider within his or her own group practice unless an exception to the referral prohibition applies. A violation of this statute can result in significant civil monetary penalties, and a physician who violates the statute may be subject to disciplinary action by the Florida Board of Medicine. Generally, physicians who are partners in a group practice depend on an exception to the referral prohibition that permits referrals within a group practice if certain conditions are met. One of those conditions is that a physician's referrals must be for healthcare items or services that are prescribed or provided solely for the group practice's own patients. In order for a person to be a "patient of a group practice," the group practice must provide the person a physical examination, evaluation, diagnosis and development of a treatment plan (if medically necessary) by a physician who is a member of the group practice. This requirement presents a dilemma for a group practice if a person who is not yet an established patient of the group practice contacts, or is referred to, the group practice via telemedicine technology. The issue is whether the "physical examination" requirement means that a person must be physically located in the same place as the physician when the physician conducts the initial physical examination.

The Florida Board of Medicine's telemedicine rule (Rule 64B8-9.0141, Florida Administrative Code) states that a physician-patient relationship can be established via telemedicine, but the rule does not state whether a physician must perform a physical examination in order to establish a patient-physician relationship. However, the rule prohibits a physician from providing treatment recommendations via electronic or other means, unless certain conditions have been satisfied, including a documented patient evaluation that includes a history and physical examination to establish the diagnosis for which any legend drug is prescribed. The telemedicine rule also states that the same standard of care applies to the diagnosis and treatment of a patient, regardless of whether the physician examines and treats the patient through telemedicine or in person. The rule arguably implies that, if a physician is able, via telemedicine, to observe, evaluate and communicate with a patient sufficiently to meet the standard of care for the diagnosis and treatment of the patient's particular condition, then the physician should be permitted to conduct and act upon an examination of the patient via telemedicine. However, absent the adoption of clarifying legislation such as Senate Bill 280, the resolution of this issue is uncertain.

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