Florida Ends Telehealth Waivers; Department of Health Issues Update

02 July 2021 Health Care Law Today Blog
Authors: Nathaniel M. Lacktman Thomas B. Ferrante Kyle Y. Faget

Florida’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.

Want to Learn More?

For more information on telemedicine, telehealth, virtual care, remote patient monitoring, digital health, and other health innovations, including the team, publications, and representative experience, visit Foley’s Telemedicine & Digital Health Industry Team.

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.