On May 4, 2023, SB 254 passed the Florida Senate by a safe majority vote of 83 to 28 and is now on Governor DeSantis’s desk for approval. Once signed (expected shortly) , this law will take immediate effect and disrupt the provision of gender affirming care in the state of Florida. Specifically, the law will:
- prohibit the provision of sex-reassignment prescriptions or procedures to minors;
- impact the ability to prescribe sex-reassignment medications to adults via telemedicine; and
- prohibit state funds from paying for sex-reassignment prescriptions or procedures.
This law only impacts prescriptions and procedures and will not impact the provision of other types of care, such as behavioral health services.
Prohibition of Treatment of Minors
The proposed law broadly prohibits any sex-reassignment prescriptions and procedures for patients younger than 18 years of age regardless of parental consent or physician recommendation. The only exception to the prohibition is for patients who commenced any prescriptions or procedures prior to or on the date of when the proposed law is signed. In these cases, the Board of Medicine and the Board of Osteopathic Medicine must adopt emergency rules dictating the required informed consent requirements from the patient’s parent or legal guardian and the provision of professional counseling services by a psychiatrist or psychologist for the patient. Willful violation of this law by a health care practitioner will be considered a felony of the third degree.
Additionally, the law would allow Florida courts to take emergency temporary jurisdiction of a child present in this state if necessary to prevent a minor from either being at risk of or currently undergoing any sex-reassignment prescriptions or procedures.
In Person Informed Consent for Treatment of Adults
Under the proposed law, a patient over 18 must provide voluntary informed consent, in writing, before obtaining sex-reassignment prescriptions or procedures. For the consent to be considered informed, the prescribing or administering physician must, while “physically present in the same room”:
- Inform the patient of the nature and risks;
- Provide the informed consent forms adopted by the Board of Medicine and the Board of Osteopathic Medicine; and
- Receive the patient’s written acknowledgement before the prescription or procedure is prescribed, administered, or performed.
The treating physician only needs to obtain consent once for a prescription and any renewals, but separate consent will be needed before the physician prescribes any new pharmaceutical products. Further, only a physician can obtain consent (i.e., nurse practitioners and physician assistants cannot satisfy the consent requirements) and failure to do so will be classified as a misdemeanor of the first degree.
The “physically present in the same room” requirement means physicians may not provide the consent via telehealth technologies which could significantly restrict a patient’s ability to receive needed prescriptions via telemedicine.
Once the bill is signed into law, state funds cannot be used to pay for sex-reassignment prescriptions or procedures.
Foley is here to help you address the short- and long-term impacts in the wake of regulatory changes. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group with any questions.