Florida Board of Medicine to Hold Another Hearing on Telemedicine and Medical Marijuana Rules

24 May 2017 Health Care Law Today Blog
Authors: Nathaniel M. Lacktman Thomas B. Ferrante

On August 4, 2017, the Florida Board of Medicine will hold a third public hearing to discuss its proposed amendment to Florida’s telemedicine practice rules regarding medical marijuana. The Board held two prior public hearings, after which it delayed implementation of the rule for further consideration.

Notice of the upcoming public hearing comes only days after state lawmakers failed to pass a medical marijuana bill.  Absent a special session of the Florida Legislature, the Department of Health’s Office of Compassionate Use is now tasked with creating rules to implement Amendment 2.  Amendment 2, passed by voters last Fall, changed the Florida Constitution to allow the medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician.  The Department of Health released proposed rules on January 17, 2017, but those rules were criticized by advocates as not aligning with the changes to the Florida Constitution made by Amendment 2.  The Department of Health has until July to issue final regulations.  The Board of Medicine’s proposed rule is distinct from, and does not substitute, the Department’s proposed rule.

What Will the Board’s Proposed Rule Do?

The Board’s proposed rule would prohibit physicians from ordering medical marijuana via telemedicine. The amendment would add a new Section (5) to the Standards for Telemedicine Practice under 64B8-9.0141, F.A.C. If the proposed amendment is finalized, the regulation would state as follows: “(5) Medical cannabis or low-THC cannabis, as defined by s. 381.986, F.S., may not be ordered by means of telemedicine.”

Why is the Hearing and Proposed Rule Important?

Interested physicians, providers, and entrepreneurs may want to attend the public hearing, both to learn more about the Board’s position on medical marijuana and telemedicine, understand the implications if the proposed rule were to be enacted, and to contribute their perspectives to inform the Board’s discussion. Some points of potentially-useful clarification participants might discuss at the hearing include, for example:

  • Whether or not it is appropriate to limit the use of telemedicine based on the physician’s choice of recommended treatment (e.g., medical marijuana vs pharmaceutical prescriptions), rather than based on the applicable standard of care and the patient’s clinical condition(s).
  • Whether or not a physician may conduct a telemedicine-based exam to qualify a patient for Florida’s compassionate use registry (and start the 90 day clock), assuming the physician subsequently conducts an in-person exam prior to ordering medical marijuana.
  • Whether or not a physician may use telemedicine-based exams for follow-up exams or interim consults with patients receiving medical marijuana, in conjunction with in-person exams.
  • Whether or not the Board’s proposed regulation conflicts or complies with the language in the Florida Constitution created by Amendment 2.
  • Whether or not the Board’s proposed regulation conflicts or complies with the forthcoming regulations to be issued by the Department of Health in July (which should be available ahead of the Board’s August hearing).

Some states, like California, do not prohibit telemedicine-based examinations for medical marijuana, while others, like Colorado, require an in-person examination prior to recommending medical marijuana. Even in states that allow telemedicine-based examinations for medical marijuana, providers should keep in mind that the examination for the condition for which medical marijuana is being recommended must be an appropriate medical examination and meet the standard of care

What’s Next?

Anyone may attend the Florida Board of Medicine public hearing and request to be heard, ask a question, or make a statement.  The hearing will occur on August 4, 2017, at 8:00 am, at:

The Hyatt Regency Miami
400 SE 2nd Avenue
Miami, Florida 33131

We will continue to monitor changes to Florida regulations on this issue.

For more information on telemedicine, telehealth, virtual care, and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine and Virtual Care practice.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services