New Telehealth Bills Effective In Florida And New York


FLORIDA NEWS


The Florida House and Senate finally agreed on a new Florida Telehealth Bill, which Governor DeSantis signed in June. The bill is effective July 1, 2019, and cements the validity of telehealth services in Florida, establishes new telehealth practice standards, creates a registration process for out-of-state health care professionals using telehealth with Florida patients, and introduces minimal commercial reimbursement provisions. The provisions are summarized and explained below:

Key Definitions

• Telehealth is defined as the use of synchronous or asynchronous telecommunications technology by a telehealth provider to provide health care services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. Telehealth does not include audio-only telephone calls, e-mail messages, or fax transmissions.

• Telehealth Provider is broadly defined as an individual who provides a health care service using telehealth, which includes, but is not limited to, a licensed physician, podiatrist, optometrist, nurse, nurse practitioner, pharmacist, dentist, chiropractor, acupuncturist, midwife, speech language pathologist, audiologist, occupational therapist, radiological personnel, respiratory therapist, dietician, athletic trainer, massage therapist, medical physicist, optician, hearing aid specialist, physical therapist, psychologist, clinical social worker, mental health counselor, psychotherapist, marriage and family therapist, behavior analyst, basic or advanced life support service, or air ambulance service, and others. Telehealth provider also includes an individual licensed under a multi-state health care licensure compact of which Florida is a member state or an individual who obtains an out-of-state telehealth registration (more detail below).
 
Practice Standards

• Standard of Care. The new law makes it clear that a telehealth provider has the duty to practice in a manner consistent with his or her scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to Florida patients.

• Telehealth Exams. A telehealth provider may use telehealth to perform a patient evaluation. If a telehealth provider conducts a patient evaluation sufficient to diagnose and treat the patient, the telehealth provider is not required to research a patient’s medical history or conduct a physical examination before using telehealth to provide health care services.

• Telemedicine Prescribing. A telehealth provider may only use telehealth to prescribe a controlled substance if the controlled substance is prescribed for: (1) the treatment of a psychiatric disorder; (2) inpatient treatment at a hospital; (3) the treatment of a patient receiving hospice services; or (4) the treatment of a nursing home resident. This change expands telemedicine controlled substance prescribing in Florida to hospice and nursing home patients. Telemedicine prescribers should continue to be mindful of prescribing requirements under federal laws, as remote prescribing of controlled substances is governed by the Ryan Haight Act.

• Patient Medical Records. Telehealth providers must maintain a complete record of the patient’s care according to the same standard as used for in-person services and comply with applicable Florida law for confidentiality and disclosure of the patient’s medical record.
Out of State Registration and Licensure Exceptions

Out-of-State Registration. The new law authorizes out-of-state health care professionals, without a Florida license, to use telehealth to deliver health care services to Florida patients if they register with the Department of Health or the applicable board, meet certain eligibility requirements, and pay a fee. To obtain an out-of-state registration the health care professional must:
• Complete an application;
• Maintain an active, unencumbered license issued by another state that is substantially similar to the corresponding Florida license;
• Not have been the subject of disciplinary action relating to his or her license for the previous 5 years;
• Designate a registered agent for service of process in Florida;
• Maintain professional liability coverage, that includes coverage for telehealth services to patients in Florida, in amounts equal to or greater than what are required for a Florida-licensed practitioner;
• Not open an office in Florida or provide in-person health care services to patients located in Florida.
• Only use a Florida-licensed pharmacy or a registered nonresident pharmacy or outsourcing facility to dispense medicinal drugs to patients located in Florida. (Pharmacists only)
 
Licensure Exception. A health care professional who is not licensed to provide health care services in Florida, but who holds an active license to provide health care services in another state, may provide health care services using telehealth to a patient located in Florida without a Florida license and without an out-of-state registration, if the services are provided: (1) in response to an emergency medical condition; or (2) in consultation with a Florida-licensed health care professional who has ultimate authority over the diagnosis and care of the patient.

Insurance Coverage of Telehealth Services

While the bill is a great step forward for providers of telehealth services on several fronts, it does not actually require health plans to cover services delivered via telehealth. With an effective date of January 1, 2020, the bill creates a new Section 627.42396, F.S., which reads:

A contract between a health insurer issuing major medical comprehensive coverage through an individual or group policy and a telehealth provider, must be voluntary between the insurer and the provider and must establish mutually acceptable payment rates or payment methodologies for services provided through telehealth. Any contract provision that distinguishes between payment rates or payment methodologies for services provided through telehealth and the same services provided without the use of telehealth must be initialed by the telehealth provider.

A new subsection was added which clarifies that contracts signed by insurers with telehealth providers be “voluntary” with mutually acceptable rates or payment methodologies and requires the telehealth provider to initial any contract provision that would cause telehealth reimbursement to be different than reimbursement for the same services provided in person. Unfortunately, for now, health plan reimbursement continues to be a stumbling block for telehealth providers and patients as Florida remains among the minority of states without a meaningful telehealth insurance coverage law.

NEW YORK NEWS

In related news, in January of 2019 the New York State Office of Mental Health published draft amendments to its regulations expanding the use of telehealth to deliver mental health services. The new regulations seek to expand opportunities for the delivery of and access to mental health services via telehealth – redesignated as “telemental health” rather than “telepsychiatry” – in the OMH-licensed setting. The regulations increase requirements applicable to telemental health in the OMH-licensed setting and apply to providers licensed under Article 31 of the Mental Hygiene Law who are authorized to include the use of telemental health to render mental health services. The regulations were adopted on June 17th, 2019, and can be accessed here: https://www.omh.ny.gov/omhweb/policy_and_regulations/.

In February 2019, New York State Medicaid expanded coverage of telehealth services to include: 1) additional originating and distant sites; 2) additional telehealth applications like store and forward technology, and remote patient monitoring; 3) and additional types of practitioners. Here is the special edition Expansion of Telehealth, New York State Medicaid Update: https://www.health.ny.gov/health_care/medicaid/program/update/2019/feb19_mu_speced.pdf

CONTACT US: By taking advantage of technological advances, clinicians, health care facilities and professionals, as well as entrepreneurs have the chance to be at the forefront of health care delivery by expanding their services as well as their bottom line. This opportunity to enhance patient care and outcomes with telemedicine comes with financial challenges. It is critical to consult with your accounting and business advisory professionals who have the experience and resources to help you grow your business while adding value for your patients. Call toll free in New York or Florida, 855-534-2727.
 

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