Florida Senate - 2014                                    SB 1646
       By the Committee on Health Policy
       588-02190A-14                                         20141646__
    1                        A bill to be entitled                      
    2         An act relating to telemedicine; creating s. 456.4501,
    3         F.S.; providing a short title; creating s. 456.4502,
    4         F.S.; defining terms applicable to the act; creating
    5         s. 456.4503, F.S.; requiring physicians providing
    6         telemedicine services to patients in this state to be
    7         licensed in this state or to meet alternative
    8         requirements; requiring pertinent records to be made
    9         available upon request; providing certain exceptions
   10         for emergency services and consultations; requiring
   11         other health care providers to be supervised by a
   12         physician; providing continuing education requirements
   13         for telemedicine providers; establishing venue;
   14         providing applicability; authorizing the licensing
   15         boards to adopt rules; creating s. 456.4504, F.S.;
   16         providing standards and prohibitions for the provision
   17         of telemedicine services; prohibiting nonemergency
   18         prescribing of a legend drug without a physical
   19         examination; prohibiting the prescription of a
   20         controlled substance for chronic nonmalignant pain
   21         using telemedicine; creating s. 456.4505, F.S.;
   22         authorizing the use of telemedicine services in the
   23         diagnosis and treatment of the human eye; providing
   24         requirements for the use of automated equipment;
   25         requiring the owner or lessee of the automated
   26         equipment to maintain specified liability insurance
   27         under certain circumstances; prohibiting prescriptions
   28         for spectacles or contact lens based solely on the use
   29         of an autorefractor; creating s. 456.4506, F.S.;
   30         providing requirements for reimbursement of
   31         telemedicine services under the Medicaid program;
   32         requiring a report to the Legislature on the usage and
   33         costs of telemedicine in Medicaid by a certain date;
   34         providing for future repeal; providing an effective
   35         date.
   37  Be It Enacted by the Legislature of the State of Florida:
   39         Section 1. Section 456.4501, Florida Statutes, is created
   40  to read:
   41         456.4501Short title.—Sections 456.4501-456.4506 may be
   42  cited as the “Florida Telemedicine Act.”
   43         Section 2. Section 456.4502, Florida Statutes, is created
   44  to read:
   45         456.4502Definitions.—As used in this act, the term:
   46         (1) “Act” means the Florida Telemedicine Act.
   47         (2) “Advanced communications technology” means:
   48         (a) Compressed digital interactive video, audio, or data
   49  transmissions;
   50         (b) Real-time synchronous video- or web-conferencing
   51  communications;
   52         (c) Secure web-based communications;
   53         (d) Still-image capture or asynchronous store and forward;
   54         (e) Health care service transmissions supported by mobile
   55  devices (mHealth); or
   56         (f) Other technology that facilitates access to health care
   57  services or medical specialty expertise.
   58         (3)“Distant site” means the location at which the
   59  telemedicine provider delivering the health care service is
   60  located at the time the service is provided via telemedicine.
   61         (4) “Encounter” means an examination, consultation,
   62  monitoring, or other health care service.
   63         (5) “Health care provider” means a health care practitioner
   64  or out-of-state licensed individual who provides health care
   65  services within the scope of his or her professional license.
   66         (6) “In person” means that a patient is in the physical
   67  presence of the health care provider without regard to whether
   68  portions of the encounter are conducted by other providers.
   69         (7)“Originating site” means the location of the patient
   70  receiving telemedicine services, which site meets the standards
   71  of this act as verified by the telemedicine provider.
   72         (8)“Patient presenter” means an individual who has
   73  clinical background training in the use of advanced
   74  communications technology equipment and who is available at the
   75  originating site to present the patient, manage the cameras or
   76  equipment, and perform any hands-on activity necessary to
   77  successfully complete the telemedicine encounter under the
   78  direction and supervision of a telemedicine provider.
   79         (9)“Store and forward” means the type of telemedicine
   80  encounter that uses still images of patient data for rendering a
   81  medical opinion or diagnosis. The term includes the asynchronous
   82  transmission of clinical data from one site to another.
   83         (10) “Telehealth” means the use of advanced communications
   84  technology to provide access to health assessment, diagnosis,
   85  intervention, consultation, supervision, and information across
   86  distances. The term includes the use of remote patient
   87  monitoring devices that are used to collect and transmit data
   88  for telemonitoring and interpretation.
   89         (11)“Telemedicine” means the practice of medicine through
   90  the use of advanced communications technology by a telemedicine
   91  provider at a distant site in compliance with federal and state
   92  privacy and confidentiality requirements and encryption
   93  standards. Services provided through telemedicine may include
   94  patient assessment, diagnosis, consultation, treatment,
   95  prescription of medicine, transfer of medical data, or other
   96  medical-related services. The term does not include audio-only
   97  calls, e-mail messages, or facsimile transmissions. Telemedicine
   98  includes telehealth and telemonitoring.
   99         (12) “Telemedicine provider” means a physician licensed
  100  under chapter 458 or chapter 459 who provides telemedicine
  101  services.
  102         Section 3. Section 456.4503, Florida Statutes, is created
  103  to read:
  104         456.4503 Telemedicine requirements.—
  105         (1) An out-of-state physician who provides telemedicine
  106  across state lines to a patient physically located in this state
  107  must:
  108         (a) Have a Florida license to practice medicine as provided
  109  under chapter 458 or chapter 459, except as provided under
  110  subsection (2); or
  111         (b) If not licensed in this state:
  112         1. Hold an unrestricted active license to practice
  113  allopathic or osteopathic medicine in the state of the distant
  114  site and that state’s licensure requirements must meet or exceed
  115  those of this state under chapter 458 or chapter 459, as
  116  determined by the appropriate board;
  117         2. Maintain professional liability coverage that includes
  118  coverage for telemedicine services, in an amount and manner
  119  consistent with s. 458.320 and appropriate to the physician’s
  120  scope of practice and location;
  121         3. Have one of the following:
  122         a. Privileges at or be on the medical staff of an out-of
  123  state hospital affiliated with a Florida hospital licensed under
  124  chapter 395; or
  125         b. Affiliation with an out-of-state health insurer or
  126  health plan that is also authorized to conduct business in this
  127  state pursuant to chapter 627 or chapter 641; and
  128         4. Practice in a state that authorizes Florida-licensed
  129  physicians to provide telemedicine services to patients located
  130  in that state without having to be licensed to practice medicine
  131  in that state.
  132         (2) An out-of-state physician authorized under paragraph
  133  (1)(b) to provide telemedicine services to patients in this
  134  state is subject to appropriate disciplinary action by the Board
  135  of Medicine, the Board of Osteopathic Medicine, or a regulatory
  136  entity in this state which has regulatory jurisdiction over the
  137  hospital, insurer, or health plan affiliated with the physician
  138  as described in subparagraph (1)(b)3.
  139         (3) A telemedicine provider and a hospital, insurer, or
  140  health plan operating in this state which is affiliated with an
  141  out-of-state provider as described in subparagraph (1)(b)3.
  142  shall make any pertinent records available upon request of the
  143  board, the department, or other regulatory authority as
  144  applicable. Failure to comply with such request may result in
  145  the revocation of the provider’s license or imposition of a fine
  146  by the applicable board; or, in the case of an affiliated
  147  hospital, insurer, or health plan, a fine, license restriction,
  148  or revocation of an affiliated entity’s authorization to conduct
  149  business in this state.
  150         (4) An out-of-state physician is not required to meet the
  151  requirements of subsection (1) if:
  152         (a) The out-of-state physician is consulting with a
  153  physician licensed to practice medicine in this state; and
  154         (b) The physician licensed in this state retains ultimate
  155  authority and responsibility for the diagnosis, treatment, and
  156  care of the patient located within this state.
  157         (5)Physician consultations that occur on an emergency
  158  basis and that are conducted via telemedicine are exempt from
  159  subsection (1). Emergency services and care provided to
  160  relieve an emergency medical condition have the same meaning
  161  as provided in s. 395.002.
  162         (6)A health care provider or patient presenter acting
  163  under the direction and supervision of a physician through the
  164  use of telemedicine may not be interpreted as practicing
  165  medicine without a license. However, the health care provider
  166  must be trained in, educated on, and knowledgeable about the
  167  procedure and technology and may not perform duties for which
  168  the provider does not have sufficient training, education, and
  169  knowledge. Failure to have adequate training, education, and
  170  knowledge is grounds for disciplinary action by the appropriate
  171  board, or the department if there is no board, or the affiliated
  172  regulatory entity for affiliated providers.
  173         (7) Upon license renewal, a physician practicing
  174  telemedicine shall:
  175         (a)Designate himself or herself as a telemedicine provider
  176  on the physician’s practitioner profile; and
  177         (b) Submit proof of successful completion of a course and
  178  subsequent examination, approved by the board, on the standards
  179  of practice in telemedicine. The course must consist of 2 web
  180  based contact hours. The first course and examination must be
  181  offered by July 1, 2014, and shall be conducted at least
  182  annually thereafter. The course and examination shall be
  183  developed and offered by a statewide professional association of
  184  physicians in this state accredited to provide educational
  185  activities designated for an American Medical Association
  186  Physician’s Recognition Award (AMA PRA) Category 1 credit. The
  187  board shall review and approve the content of the initial course
  188  and examination if the board determines that the course and
  189  examination adequately and reliably satisfy the criteria set
  190  forth in this section. The board shall annually thereafter
  191  review and approve the course and examination if the board
  192  determines that the content continues to adequately and reliably
  193  satisfy the criteria set forth in this section. Successful
  194  completion of the board-approved course and examination may be
  195  used by a certified physician to satisfy 2 hours of continuing
  196  education requirements for the biennial period during which the
  197  board-approved course and examination are taken. A physician who
  198  does not complete a board-approved course and examination under
  199  this section may not provide telemedicine services.
  200         (8) Venue for a civil or administrative action initiated by
  201  the telemedicine recipient, the department, or the appropriate
  202  board shall be based on the location of the patient or shall be
  203  in Leon County.
  204         (9)The boards may adopt rules to administer the
  205  requirements of this act and must repeal rules that are
  206  inconsistent with this act, including rules that prohibit the
  207  use of telemedicine in this state. The appropriate board may
  208  also develop standards and adopt rules relating to requirements
  209  for patient presenters. Such rules may not require the use of
  210  patient presenters in telemedicine services if special skills or
  211  training is not needed for a patient to participate in the
  212  encounter.
  213         Section 4. Section 456.4504, Florida Statutes, is created
  214  to read:
  215         456.4504 Telemedicine standards.—
  216         (1) The standard of care as provided in s. 766.102 is the
  217  same regardless of whether the physician provides health care
  218  services in person or by telemedicine. The applicable board may
  219  adopt rules specifically related to the standard of care for
  220  telemedicine.
  221         (2) A telemedicine provider providing telemedicine services
  222  under this act is responsible for the quality of the equipment
  223  and technology employed and for its safe use. Telemedicine
  224  equipment and advanced communications technology must, at a
  225  minimum, be able to provide the same information to the
  226  telemedicine provider as the information that would be obtained
  227  in an in-person encounter with a health care provider and must
  228  enable the telemedicine provider to meet or exceed the
  229  prevailing standard of care for the practice of the profession.
  230         (3) The telemedicine provider is not required to conduct a
  231  patient history or physical examination of the patient before
  232  engaging in a telemedicine encounter if the telemedicine
  233  provider conducts a patient evaluation sufficient to meet the
  234  prevailing standard of care for the services provided.
  235         (4) Before each telemedicine encounter, the identification
  236  and location of the telemedicine provider and all other
  237  individuals present via advanced communications technology who
  238  will view the patient or the patient’s information must be
  239  identified to the patient.
  240         (5) For the purposes of this act, the nonemergency
  241  prescribing of a legend drug based solely on an electronic
  242  questionnaire without a visual examination is considered a
  243  failure to practice medicine with the level of care, skill, and
  244  treatment which is recognized by a reasonably prudent physician
  245  or other authorized practitioner and is not authorized under
  246  this act.
  247         (6) A controlled substance may not be prescribed through
  248  the use of telemedicine for chronic, nonmalignant pain.
  249         (7) Medical records must be kept by each telemedicine
  250  provider that participates in a patient telemedicine encounter
  251  to the same extent as required for an in-person encounter under
  252  state and federal law. Telemedicine providers are encouraged to
  253  create electronic health records to document the encounter and
  254  to transmit information in the most efficient manner possible.
  255         (8) Any medical records generated, including records
  256  maintained via video, audio, electronic, or other means, due to
  257  a telemedicine encounter must conform to the confidentiality and
  258  recordkeeping requirements of federal law and nationally
  259  recognized health care accreditation organizations and the laws
  260  and rules of this state, regardless of where the medical records
  261  of a patient in this state are maintained.
  262         (9) Telemedicine technology used by a telemedicine provider
  263  must be encrypted and must use a recordkeeping program to verify
  264  each interaction.
  265         (10) In those situations in which a telemedicine provider
  266  uses telemedicine technology provided by a third-party vendor,
  267  the telemedicine provider must:
  268         (a) Require a business associate agreement with the third
  269  party vendor; and
  270         (b) Ensure that the third-party vendor complies with the
  271  administrative, physical, and technical safeguards and standards
  272  set forth by the Health Information Technology for Economic and
  273  Clinical Health (HITECH) Act and by federal regulations
  274  implemented pursuant to HITECH.
  275         Section 5. Section 456.4505, Florida Statutes, is created
  276  to read:
  277         456.4505 Telemedicine services to diagnose or treat the
  278  human eye.—
  279         (1)The use of automated equipment, including computer
  280  controlled devices, in the provision of telemedicine services to
  281  diagnose or treat the human eye and its appendages, is
  282  permissible if the following requirements are met at the time
  283  the automated equipment is used:
  284         (a)The automated equipment is approved by the United
  285  States Food and Drug Administration for the intended use;
  286         (b) The automated equipment is designed and operated in a
  287  manner that provides any accommodation required by the federal
  288  ADA Amendments Act of 2008;
  289         (c)The automated equipment and accompanying technology
  290  used for the collection and transmission of information and
  291  data, including photographs and scans, gathers and transmits
  292  protected health information in compliance with the federal
  293  Health Insurance Portability and Accountability Act;
  294         (d)The procedure for which the automated equipment is used
  295  has a recognized Current Procedural Terminology (CPT) code
  296  approved by the Centers for Medicare and Medicaid Services;
  297         (e)The physical location of the automated equipment
  298  prominently displays the name and Florida license number of the
  299  individual who will read and interpret the diagnostic
  300  information and data, including photographs and scans;
  301         (f)Diagnostic information and data, including photographs
  302  and scans, gathered by the automated equipment is read and
  303  interpreted by an optometrist licensed under chapter 463 or a
  304  physician skilled in diseases of the human eye and licensed
  305  under chapter 458 or chapter 459; and
  306         (g)The owner or lessee of the automated equipment
  307  maintains liability insurance in an amount adequate to cover
  308  claims made by individuals diagnosed or treated based on
  309  information and data, including photographs and scans, generated
  310  by the automated equipment.
  311         (2)A prescription for spectacles or contact lens may not
  312  be made based on telemedicine services or based solely on the
  313  refractive error of the human eye generated by a computer
  314  controlled device such as an autorefractor.
  315         Section 6. Section 456.4506, Florida Statutes, is created
  316  to read:
  317         456.4506Telemedicine services under Medicaid.—
  318         (1)The Agency for Health Care Administration shall
  319  reimburse for Medicaid services provided through telemedicine in
  320  the same manner and equivalent to Medicaid services provided in
  321  person under parts III and IV of chapter 409, except as provided
  322  in subsection (7).
  323         (2)Telemedicine services reimbursed under Medicaid must
  324  meet the standards and requirements of this act.
  325         (3)Except as provided in subsection (7), the agency may
  326  not require in-person contact between a telemedicine provider
  327  and Medicaid recipient as a prerequisite for payment for
  328  services appropriately provided through telemedicine in
  329  accordance with generally accepted health care practices and
  330  standards prevailing in the applicable health care community at
  331  the time the services are provided.
  332         (4) Before receipt of telemedicine services, a Medicaid
  333  recipient or the legal representative of a Medicaid recipient
  334  must provide informed consent for telemedicine services. A
  335  Medicaid recipient shall also be provided the opportunity to
  336  receive the same service through an in-person encounter.
  337         (5)A Medicaid service that is provided through a fee-for
  338  service or managed care program may not be denied as a
  339  creditable Medicaid service solely because that service is
  340  provided through telemedicine.
  341         (6)Reimbursement of telemedicine services under Medicaid
  342  shall be the amount negotiated between the parties involved to
  343  the extent permitted under state and federal law. Regardless of
  344  the reimbursement methodology or amount, telemedicine providers
  345  located at the originating site and the distant site should both
  346  receive reimbursement based on the services rendered, if any,
  347  during the telemedicine encounter.
  348         (7)If, after implementation, the agency determines that
  349  the delivery of a particular service through telemedicine is not
  350  cost-effective or does not adequately meet the clinical needs of
  351  recipients and the determination has been documented, the agency
  352  may discontinue Medicaid reimbursement for that telemedicine
  353  service.
  354         (8)The agency shall submit a report on the usage and
  355  costs, including savings, if any, associated with the provision
  356  of health care services through telemedicine under the Medicaid
  357  program by January 1, 2017, to the President of the Senate, the
  358  Speaker of the House of Representatives, and the minority
  359  leaders of the Senate and the House of Representatives.
  360         (9)This section is repealed June 30, 2017.
  361         Section 7. This act shall take effect October 1, 2014.