COVID-19 threat prompts Florida’s Health Officials to expand telehealth under Emergency Order

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On Monday, March 16, 2020, Florida’s Surgeon General issued a rare Emergency Order (the Order) that allows certain out-of-state health care professionals to temporarily provide telehealth services to persons in Florida in order to prepare for, respond to, or mitigate the effects of COVID-19. The Order also allows certain Florida licensed physicians to use telehealth services instead of in-person examinations in limited circumstances to prescribe controlled substances for their patients or to re-certify qualified patients for medical marijuana use. The Order is in effect for 30 days, unless the Surgeon General decides to extend the Order.

Also on March 16, 2020, Florida’s Agency for Health Care Administration (AHCA) issued a draft Medicaid provider alert stating that “In order to reduce community-spread of the virus, the Agency (and its Medicaid health plans) will be postponing face-to-face provider-site visit requirements (e.g., enrollment, credentialing, etc.) until further notice. Whenever possible, these requirements will be met telephonically or through audio/visual technology.” AHCA also stated in the draft alert that AHCA will be issuing subsequent guidance related to telemedicine and other “flexibilities or service enhancements that will be enacted to ensure there is no disruption in care for Medicaid recipients in the event of workforce shortages or limitations in recipients seeking care in provider offices.” AHCA expects to formalize the draft Medicaid provider alert as part of a Medicaid Program Policy Transmittal soon.

The Surgeon General’s Order temporarily allows physicians, physician assistants, and advanced registered nurse practitioners who hold a valid, clear and unrestricted license in another U.S. state or territory to furnish telehealth services to persons in Florida even if such health care professionals are not registered with Florida’s Department of Health as out-of-state telehealth providers. In order to qualify, however, the health care professionals must not currently be under investigation or prosecution in any disciplinary proceeding, and they must comply with Florida’s scope of practice limitations. The Order is silent as to coverage and reimbursement for these telehealth services.

The Order increases access for Floridians to health care professionals through the use of telehealth. Without the Order, a health care professional not licensed in Florida would not be permitted under Florida law to conduct a telehealth service for a patient located in Florida unless that health care professional first registered with applicable Florida licensing board (e.g., the Board of Medicine or Board of Osteopathic Medicine). That registration process is typically time-consuming because it requires the out-of-state health care professional to complete and submit a registration application to the Department of Health and satisfy certain other registration requirements. The Order expressly waives the registration requirement for the qualifying out-of-state health care professionals, thereby immediately expanding access to needed services for Floridians through the use of telehealth.

The Order also allows Florida licensed physicians, physician assistants, and advanced registered nurse practitioners who have designated themselves as a “controlled substance prescribing practitioner” in accordance with Florida law to issue a renewal prescription for a controlled substance to an existing patient for the purpose of treating chronic malignant pain without the need to conduct an in-person physician examination and instead through the use of an examination through telehealth.

The Order also makes it temporarily possible for qualified physicians to use telehealth in order to provide medical marijuana for certain patients. Specifically, a “qualified physician” under Florida’s medical marijuana law may, for 30 days, use a telehealth visit to issue a physician certification for an existing qualified patient who already has an existing certification issued by the same qualified physician without the need to conduct an examination while physically present in the same room as the qualified patient.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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