Health Care Law: Telemedicine Legal Considerations for Florida Providers

04 April 2014 HCBA Lawyer Magazine Publication
Authors: Nathaniel M. Lacktman

HCBA Lawyer Magazine

Many physicians and health care businesses in Florida are developing telemedicine practices to treat patients located in other states. The governing law for practicing medicine is in the state where the patient is located, not where the physician is located. Therefore, a physician based in Florida who provides telemedicine services to a patient located in Indiana must be licensed to practice medicine in Indiana (or meet an exception to licensure).

However, securing proper licensure is not the only consideration for a multistate telemedicine practice. Essential legal and regulatory considerations include: 1) business models (peer-to-peer, direct-to-patient, remote monitoring, mHealth, etc.); 2) state fraud and abuse laws; 3) professional compensation arrangements (contractor, employee, investor, corporate practice of medicine, etc.); 4) special consent and recordkeeping rules for telemedicine; 5) medical record privacy and security; 6) credentialing; and 7) payor reimbursement.

The challenge with these issues is that a successful telemedicine business typically operates across multiple states and is subject to the state laws of all the places where the patients are located and it does business. Although health care providers are no stranger to high levels of regulation, business models and contractual arrangements that work in Florida will not necessarily work in other states. Telemedicine practices must be sensitive to, and aware of, the need for business arrangements capable of satisfying health care regulations across multiple states.

Take, for example, scope of practice. This issue is important because it dictates what services the physician may offer patients under the telemedicine arrangement. Whether or not a physician, even if fully licensed, may provide certain services via telemedicine is an issue of scope of practice governed by state law (e.g., conduct a patient consult, render a diagnosis, make a treatment recommendation, issue a remote prescription). Some states (e.g., Texas, Louisiana) require the telemedicine physician to have performed at least one in-person physical examination prior to utilizing telemedicine, whereas other states (e.g., Mississippi, North Carolina) explicitly permit a physician to establish a valid physician-patient relationship entirely via telemedicine.

Unlike many states, Florida has no statutes or regulations specific to telemedicine practice. The closest relative is a decade-old regulation (F.A.C. 64B8-9.014) designed to restrict unscrupulous Internet pharmacies from dispensing drugs online to patients without a valid physician-patient relationship. Recently, telemedicine legislation has been discussed in the Florida Legislature, but nothing has yet been enacted. The absence of a telemedicine-specific set of laws or rules can act as a barrier to widespread telemedicine availability because the lack of clear guidance creates uncertainty and risk for telemedicine providers looking to do business in Florida but unfamiliar with the acceptable practices and standards of care.

The pace of telemedicine technology and the vision of leading health care providers have outpaced state law and policy. With an appreciation for, and understanding of, the multidimensional (and multistate) nature of telemedicine, providers have fantastic opportunities to develop successful telemedicine practices.

This article appeared first in the March-April issue of HCBA Lawyer Magazine. 

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