Florida Ends Telehealth Waivers; Department of Health Issues Update

Foley & Lardner LLP

Foley & Lardner LLPFlorida’s telehealth emergency waivers ended on June 26, 2021, after Governor Ron DeSantis’ Office allowed the waivers to expire. The waivers were originally contained in Emergency Orders 20-002 and 20-003. On July 1, 2021, the Florida Department of Health issued a guidance update on how the expiration of those Emergency Orders affects telehealth services. Below is verbatim from the Department’s update:

  • Out-of-state health care practitioners are no longer authorized to render services for patients in Florida unless they become licensed to practice in Florida, except as specified in the HHS Guidance Memorandum (3/12/2021) regarding vaccine administration.
  • Out-of-state health care practitioners are no longer authorized to perform telehealth services for patients in Florida unless they become licensed or registered in Florida.
  • Qualified physicians are required to conduct an in-person physical examination to issue a physician certification for any patient [e.g., for medical marijuana purposes].
  • Controlled substance prescribers are required to conduct an in-person physical examination to issue a renewal prescription for a controlled substance.

While providers were aware these waivers would be time-limited, many did not expect Florida would allow them to expire so suddenly and without a “glide path” such as a 60-day advance notice. The expiration of these waivers, particularly for providers who have been heavily relying on them, means providers need to execute and implement their plans for how to deliver services post-waiver. The Florida Medical Association stated it will push to reinstate telehealth expansions and make them permanent in the next legislative session, including laws for telehealth coverage and payment parity.

In the interim, telemedicine providers relying on the temporary waivers should carefully review the two expired Emergency Orders to understand what practices are no longer permitted. Providers can also review the Florida Department of Health’s Telehealth FAQs. Our prior discussions of Florida’s telehealth waivers are available here, here, and here.

State and federal governments have issued a multitude of telehealth waivers in the wake of the COVID pandemic, such as state-specific waivers on licensure, telemedicine practice standards, modalities, supervision levels, and prescribing controlled substances. These waivers helped practitioners reach more patients and expand their geographic service footprint during the federal Public Health Emergency (PHE). However, the waivers were always temporary measures. The federal PHE will expire at some point, and many state waivers are not tied to the expiration of the federal PHE (which is why some states have already allowed their waivers to expire). Providers who availed themselves of these waivers should have a transition plan on how to ensure legal compliance, uninterrupted business operations, and (most importantly) continuity of patient care.

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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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