Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SPB 7028
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: FAV            .                                
                  03/05/2014           .                                

    1         Senate Substitute for Amendment (484228) (with title
    2  amendment)
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 456.4501, Florida Statutes, is created
    7  to read:
    8         456.4501Short title.—Sections 465.4501-465.4507 may be
    9  cited as the “Florida Telemedicine Act.”
   10         Section 2. Section 456.4502, Florida Statutes, is created
   11  to read:
   12         456.4502Definitions.—As used in this act, the term:
   13         (1) “Act” means the Florida Telemedicine Act.
   14         (2) “Advanced communications technology” means:
   15         (a) Compressed digital interactive video, audio, or data
   16  transmissions;
   17         (b) Real-time synchronous video- or web-conferencing
   18  communications;
   19         (c) Secure web-based communications;
   20         (d) Still-image capture or asynchronous store and forward;
   21         (e) Health care service transmissions supported by mobile
   22  devices (mHealth); or
   23         (f) Other technology that facilitates access to health care
   24  services or medical specialty expertise.
   25         (3)“Distant site” means the location at which the
   26  telemedicine provider delivering the health care service is
   27  located at the time the service is provided via telemedicine.
   28         (4) “Encounter” means an examination, consultation,
   29  monitoring, or other health care service.
   30         (5) “Health care provider” means a health care practitioner
   31  or out-of-state licensed individual who provides health care
   32  services within the scope of his or her professional license.
   33         (6) “In person” means that a patient is in the physical
   34  presence of the health care provider without regard to whether
   35  portions of the encounter are conducted by other providers.
   36         (7)“Originating site” means the location of the patient
   37  receiving telemedicine services, which site meets the standards
   38  of this act as verified by the telemedicine provider.
   39         (8)“Patient presenter” means an individual who has
   40  clinical background training in the use of advanced
   41  communications technology equipment and who is available at the
   42  originating site to present the patient, manage the cameras or
   43  equipment, and perform any hands-on activity necessary to
   44  successfully complete the telemedicine encounter under the
   45  direction and supervision of a telemedicine provider.
   46         (9)“Store and forward” means the type of telemedicine
   47  encounter that uses still images of patient data for rendering a
   48  medical opinion or diagnosis. The term includes the asynchronous
   49  transmission of clinical data from one site to another.
   50         (10) “Telehealth” means the use of advanced communications
   51  technology to provide access to health assessment, diagnosis,
   52  intervention, consultation, supervision, and information across
   53  distances. The term includes the use of remote patient
   54  monitoring devices that are used to collect and transmit data
   55  for telemonitoring and interpretation.
   56         (11)“Telemedicine” means the practice of medicine through
   57  the use of advanced communications technology by a telemedicine
   58  provider at a distant site in compliance with federal and state
   59  privacy and confidentiality requirements and encryption
   60  standards. Services provided through telemedicine may include
   61  patient assessment, diagnosis, consultation, treatment,
   62  prescription of medicine, transfer of medical data, or other
   63  medical-related services. The term does not include audio-only
   64  calls, e-mail messages, or facsimile transmissions. Telemedicine
   65  includes telehealth and telemonitoring.
   66         (12) “Telemedicine provider” means a physician licensed
   67  under chapter 458 or chapter 459 who provides telemedicine
   68  services.
   69         Section 3. Section 456.4503, Florida Statutes, is created
   70  to read:
   71         456.4503 Telemedicine requirements.—
   72         (1) An out-of-state physician who provides telemedicine
   73  across state lines to a patient physically located in this state
   74  must:
   75         (a) Have a Florida license to practice medicine as provided
   76  under chapter 458 or chapter 459, except as provided under
   77  subsection (2); or
   78         (b) If not licensed in this state:
   79         1. Hold an unrestricted active license to practice
   80  allopathic or osteopathic medicine in the state of the distant
   81  site and that state’s licensure requirements must meet or exceed
   82  those of this state under chapter 458 or chapter 459, as
   83  determined by the appropriate board;
   84         2. Maintain professional liability coverage that includes
   85  coverage for telemedicine services, in an amount and manner
   86  consistent with s. 458.320 and appropriate to the physician’s
   87  scope of practice and location;
   88         3. Have one of the following:
   89         a. Privileges at or be on the medical staff of an out-of
   90  state hospital affiliated with a Florida hospital licensed under
   91  chapter 395; or
   92         b. Affiliation with an out-of-state health insurer or
   93  health plan that is also authorized to conduct business in this
   94  state pursuant to chapter 627 or chapter 641; and
   95         4. Practice in a state that authorizes Florida-licensed
   96  physicians to provide telemedicine services to patients located
   97  in that state without having to be licensed to practice medicine
   98  in that state.
   99         (2) An out-of-state physician authorized under paragraph
  100  (1)(b) to provide telemedicine services to patients in this
  101  state is subject to appropriate disciplinary action by a
  102  regulatory entity in this state which has regulatory
  103  jurisdiction over the hospital, insurer, or health plan
  104  affiliated with the physician as described in subparagraph
  105  (1)(b)3. Such affiliated hospital, insurer, or health plan shall
  106  be held responsible by the appropriate state regulatory entities
  107  and other legal and regulatory authorities in this state, as
  108  applicable, for the actions of its affiliated physicians
  109  providing telemedicine services to patients in this state.
  110         (3) A telemedicine provider and a hospital, insurer, or
  111  health plan operating in this state which is affiliated with an
  112  out-of-state provider as described in subparagraph (1)(b)2.
  113  shall make any pertinent records available upon request of the
  114  board, the department, or other regulatory authority as
  115  applicable. Failure to comply with such request may result in
  116  the revocation of the provider’s license or imposition of a fine
  117  by the applicable board; or, in the case of an affiliated
  118  hospital, insurer, or health plan, a fine, license restriction,
  119  or revocation of an affiliated entity’s authorization to conduct
  120  business in this state.
  121         (4) An out-of-state physician is not required to meet the
  122  requirements of subsection (1) if:
  123         (a) The out-of-state physician is consulting with a
  124  physician licensed to practice medicine in this state; and
  125         (b) The physician licensed in this state retains ultimate
  126  authority and responsibility for the diagnosis, treatment, and
  127  care of the patient located within this state.
  128         (5)Physician consultations that occur on an emergency
  129  basis and that are conducted via telemedicine are exempt from
  130  subsection (1). Emergency services and care provided to relieve
  131  an emergency medical condition have the same meaning as provided
  132  in s. 395.002.
  133         (6)A health care provider or patient presenter acting
  134  under the direction and supervision of a physician through the
  135  use of telemedicine may not be interpreted as practicing
  136  medicine without a license. However, the health care provider
  137  must be trained in, educated on, and knowledgeable about the
  138  procedure and technology and may not perform duties for which
  139  the provider does not have sufficient training, education, and
  140  knowledge. Failure to have adequate training, education, and
  141  knowledge is grounds for disciplinary action by the appropriate
  142  board, or the department if there is no board, or the affiliated
  143  regulatory entity for affiliated providers.
  144         (7) Upon license renewal, a physician practicing
  145  telemedicine shall:
  146         (a)Designate himself or herself as a telemedicine provider
  147  on the physician’s practitioner profile; and
  148         (b) Submit proof of successful completion of a course and
  149  subsequent examination, approved by the board, on the standards
  150  of practice in telemedicine. The course must consist of 2 web
  151  based contact hours. The first course and examination must be
  152  offered by July 1, 2014, and shall be conducted at least
  153  annually thereafter. The course and examination shall be
  154  developed and offered by a statewide professional association of
  155  physicians in this state accredited to provide educational
  156  activities designated for an American Medical Association
  157  Physician’s Recognition Award (AMA PRA) Category 1 credit. The
  158  board shall review and approve the content of the initial course
  159  and examination if the board determines that the course and
  160  examination adequately and reliably satisfy the criteria set
  161  forth in this section. The board shall annually thereafter
  162  review and approve the course and examination if the board
  163  determines that the content continues to adequately and reliably
  164  satisfy the criteria set forth in this section. Successful
  165  completion of the board-approved course and examination may be
  166  used by a certified physician to satisfy 2 hours of continuing
  167  education requirements for the biennial period during which the
  168  board-approved course and examination are taken. A physician who
  169  does not complete a board-approved course and examination under
  170  this section may not provide telemedicine services.
  171         (8) Venue for a civil or administrative action initiated by
  172  the telemedicine recipient, the department, or the appropriate
  173  board shall be based on the location of the patient or shall be
  174  in Leon County.
  175         (9)The boards may adopt rules to administer the
  176  requirements of this act and must repeal rules that are
  177  inconsistent with this act, including rules that prohibit the
  178  use of telemedicine in this state. The appropriate board may
  179  also develop standards and adopt rules relating to requirements
  180  for patient presenters. Such rules may not require the use of
  181  patient presenters in telemedicine services if special skills or
  182  training is not needed for a patient to participate in the
  183  encounter.
  184         Section 4. Section 456.4504, Florida Statutes, is created
  185  to read:
  186         456.4504 Telemedicine standards.—
  187         (1) The standard of care as provided in s. 766.102 is the
  188  same regardless of whether the physician provides health care
  189  services in person or by telemedicine. The applicable board may
  190  adopt rules specifically related to the standard of care for
  191  telemedicine.
  192         (2) A telemedicine provider providing telemedicine services
  193  under this act is responsible for the quality of the equipment
  194  and technology employed and for its safe use. Telemedicine
  195  equipment and advanced communications technology must, at a
  196  minimum, be able to provide the same information to the
  197  telemedicine provider as the information that would be obtained
  198  in an in-person encounter with a health care provider and must
  199  enable the telemedicine provider to meet or exceed the
  200  prevailing standard of care for the practice of the profession.
  201         (3) The telemedicine provider is not required to conduct a
  202  patient history or physical examination of the patient before
  203  engaging in a telemedicine encounter if the telemedicine
  204  provider conducts a patient evaluation sufficient to meet the
  205  prevailing standard of care for the services provided.
  206         (4) Before each telemedicine encounter, the identification
  207  and location of the telemedicine provider and all other
  208  individuals present via advanced communications technology who
  209  will view the patient or the patient’s information must be
  210  identified to the patient.
  211         (5) For the purposes of this act, the nonemergency
  212  prescribing of a legend drug based solely on an electronic
  213  questionnaire without a visual examination is considered a
  214  failure to practice medicine with the level of care, skill, and
  215  treatment which is recognized by a reasonably prudent physician
  216  or other authorized practitioner and is not authorized under
  217  this act.
  218         (6) A controlled substance may not be prescribed through
  219  the use of telemedicine for chronic, nonmalignant pain.
  220         (7) Medical records must be kept by each telemedicine
  221  provider that participates in a patient telemedicine encounter
  222  to the same extent as required for an in-person encounter under
  223  state and federal law. Telemedicine providers are encouraged to
  224  create electronic health records to document the encounter and
  225  to transmit information in the most efficient manner possible.
  226         (8) Any medical records generated, including records
  227  maintained via video, audio, electronic, or other means, due to
  228  a telemedicine encounter must conform to the confidentiality and
  229  recordkeeping requirements of federal law and nationally
  230  recognized health care accreditation organizations and the laws
  231  and rules of this state, regardless of where the medical records
  232  of a patient in this state are maintained.
  233         (9) Telemedicine technology used by a telemedicine provider
  234  must be encrypted and must use a recordkeeping program to verify
  235  each interaction.
  236         (10) In those situations in which a telemedicine provider
  237  uses telemedicine technology provided by a third-party vendor,
  238  the telemedicine provider must:
  239         (a) Require a business associate agreement with the third
  240  party vendor; and
  241         (b) Ensure that the third-party vendor complies with the
  242  administrative, physical, and technical safeguards and standards
  243  set forth by the Health Information Technology for Economic and
  244  Clinical Health (HITECH) Act and by federal regulations
  245  implemented pursuant to HITECH.
  246         Section 5. Section 456.4505, Florida Statutes, is created
  247  to read:
  248         456.4505 Telemedicine services to diagnose or treat the
  249  human eye.—
  250         (1)The use of automated equipment, including computer
  251  controlled devices, in the provision of telemedicine services to
  252  diagnose or treat the human eye and its appendages, is
  253  permissible if the following requirements are met at the time
  254  the automated equipment is used:
  255         (a)The automated equipment is approved by the United
  256  States Food and Drug Administration for the intended use;
  257         (b) The automated equipment is designed and operated in a
  258  manner that provides any accommodation required by the federal
  259  ADA Amendments Act of 2008;
  260         (c)The automated equipment and accompanying technology
  261  used for the collection and transmission of information and
  262  data, including photographs and scans, gathers and transmits
  263  protected health information in compliance with the federal
  264  Health Insurance Portability and Accountability Act;
  265         (d)The procedure for which the automated equipment is used
  266  has a recognized Current Procedural Terminology (CPT) code
  267  approved by the Centers for Medicare and Medicaid Services;
  268         (e)The physical location of the automated equipment
  269  prominently displays the name and Florida license number of the
  270  individual who will read and interpret the diagnostic
  271  information and data, including photographs and scans;
  272         (f)Diagnostic information and data, including photographs
  273  and scans, gathered by the automated equipment is read and
  274  interpreted by an optometrist licensed under chapter 463 or a
  275  physician skilled in diseases of the human eye and licensed
  276  under chapter 458 or chapter 459; and
  277         (g)The owner or lessee of the automated equipment
  278  maintains liability insurance in an amount adequate to cover
  279  claims made by individuals diagnosed or treated based on
  280  information and data, including photographs and scans, generated
  281  by the automated equipment.
  282         (2)A prescription for spectacles or contact lens may not
  283  be made based on telemedicine services or based solely on the
  284  refractive error of the human eye generated by a computer
  285  controlled device such as an autorefractor.
  286         Section 6. Section 456.4506, Florida Statutes, is created
  287  to read:
  288         456.4506Telemedicine services under Medicaid.—
  289         (1)The Agency for Health Care Administration shall
  290  reimburse for Medicaid services provided through telemedicine in
  291  the same manner and equivalent to Medicaid services provided in
  292  person under parts III and IV of chapter 409, except as provided
  293  in subsection (7).
  294         (2)Telemedicine services reimbursed under Medicaid must
  295  meet the standards and requirements of this act.
  296         (3)Except as provided in subsection (7), the agency may
  297  not require in-person contact between a telemedicine provider
  298  and Medicaid recipient as a prerequisite for payment for
  299  services appropriately provided through telemedicine in
  300  accordance with generally accepted health care practices and
  301  standards prevailing in the applicable health care community at
  302  the time the services are provided.
  303         (4) Before receipt of telemedicine services, a Medicaid
  304  recipient or the legal representative of a Medicaid recipient
  305  must provide informed consent for telemedicine services. A
  306  Medicaid recipient shall also be provided the opportunity to
  307  receive the same service through an in-person encounter.
  308         (5)A Medicaid service that is provided through a fee-for
  309  service or managed care program may not be denied as a
  310  creditable Medicaid service solely because that service is
  311  provided through telemedicine.
  312         (6)Reimbursement of telemedicine services under Medicaid
  313  shall be the amount negotiated between the parties involved to
  314  the extent permitted under state and federal law. Regardless of
  315  the reimbursement methodology or amount, telemedicine providers
  316  located at the originating site and the distant site should both
  317  receive reimbursement based on the services rendered, if any,
  318  during the telemedicine encounter.
  319         (7)If, after implementation, the agency determines that
  320  the delivery of a particular service through telemedicine is not
  321  cost-effective or does not adequately meet the clinical needs of
  322  recipients and the determination has been documented, the agency
  323  may discontinue Medicaid reimbursement for that telemedicine
  324  service.
  325         (8)The agency shall submit a report on the usage and
  326  costs, including savings, if any, associated with the provision
  327  of health care services through telemedicine under the Medicaid
  328  program by January 1, 2017, to the President of the Senate, the
  329  Speaker of the House of Representatives, and the minority
  330  leaders of the Senate and the House of Representatives.
  331         (9)This section is repealed June 30, 2017.
  332         Section 7. Section 456.4507, Florida Statutes, is created
  333  to read:
  334         456.4507 Requirements for private insurer reimbursement.—
  335         (1) Each health carrier or health benefit plan that offers
  336  or issues health benefit plans that are delivered, issued for
  337  delivery, continued, or renewed in this state on or after
  338  January 1, 2014, may not deny coverage for a health care service
  339  on the basis that the health care service is provided through
  340  telemedicine if the same service would be covered if provided
  341  through an in-person encounter.
  342         (2) A health carrier may not exclude an otherwise covered
  343  health care service from coverage solely because the service is
  344  provided through telemedicine rather than through an in-person
  345  encounter between a health care provider and a patient.
  346         (3) A health carrier is not required to reimburse a
  347  telemedicine provider or a consulting provider for originating
  348  site fees or costs for the provision of telemedicine services;
  349  however, subject to correct coding, a health carrier shall
  350  reimburse a health care provider for the diagnosis,
  351  consultation, or treatment of an insured or enrollee if the
  352  health care service is delivered through telemedicine on the
  353  same basis that the health carrier reimburses the service when
  354  it is delivered in person.
  355         (4) A health care service provided through telemedicine may
  356  not be subject to a greater deductible, copayment, or
  357  coinsurance amount than would be applicable if the same service
  358  was provided through an in-person diagnosis, consultation, or
  359  treatment.
  360         (5) A health carrier may not impose upon any person
  361  receiving benefits under this section any copayment,
  362  coinsurance, or deductible amount or any policy year, calendar
  363  year, lifetime, or other durational benefit limitation or
  364  maximum for benefits or services which is not equally imposed
  365  upon all terms and services covered under the policy, contract,
  366  or health benefit plan.
  367         (6) This section does not preclude a health carrier from
  368  conducting a utilization review to determine the appropriateness
  369  of telemedicine as a means of delivering a health care service
  370  if such determination is made in the same manner as would be
  371  made for the same service delivered in person.
  372         (7) A health carrier or health benefit plan may limit
  373  coverage for health care services that are provided through
  374  telemedicine to health care providers that are in a network
  375  approved by the plan or the health carrier.
  376         (8) This section does not require a health care provider to
  377  be physically present with a patient unless the health care
  378  provider who is providing health care services by means of
  379  telemedicine determines that the presence of a health care
  380  provider is necessary.
  381         (9) This section does not apply to a supplemental insurance
  382  policy, including a life care contract, accident-only policy,
  383  specified-disease policy, hospital policy providing a fixed
  384  daily benefit only, Medicare supplement policy, long-term care
  385  policy, or short-term major medical policy of a duration of 6
  386  months or less or any other supplemental policy as determined by
  387  the Office of Insurance Regulation.
  388         Section 8. This act shall take effect October 1, 2014.
  390  ================= T I T L E  A M E N D M E N T ================
  391  And the title is amended as follows:
  392         Delete everything before the enacting clause
  393  and insert:
  394                        A bill to be entitled                      
  395         An act relating to telemedicine; creating s. 456.4501,
  396         F.S.; providing a short title; creating s. 456.4502,
  397         F.S.; defining terms applicable to the act; creating
  398         s. 456.4503, F.S.; requiring physicians providing
  399         telemedicine services to patients in this state to be
  400         licensed in this state or to meet alternative
  401         requirements; providing for disciplining out-of-state
  402         physicians through affiliated entities operating in
  403         this state; requiring pertinent records to be made
  404         available upon request; providing certain exceptions
  405         for emergency services and consultations; requiring
  406         other health care providers to be supervised by a
  407         physician; providing continuing education requirements
  408         for telemedicine providers; establishing venue;
  409         providing applicability; authorizing the licensing
  410         boards to adopt rules; creating s. 456.4504, F.S.;
  411         providing standards and prohibitions for the provision
  412         of telemedicine services; prohibiting nonemergency
  413         prescribing of a legend drug without a physical
  414         examination; prohibiting the prescription of a
  415         controlled substance using telemedicine; creating s.
  416         456.4505, F.S.; authorizing the use of telemedicine
  417         services in the diagnosis and treatment of the human
  418         eye; providing requirements for the use of automated
  419         equipment; requiring the owner or lessee of the
  420         automated equipment to maintain specified liability
  421         insurance under certain circumstances; prohibiting
  422         prescriptions for spectacles or contact lens based
  423         solely on the use of an autorefractor; creating s.
  424         456.4506, F.S.; providing requirements for
  425         reimbursement of telemedicine services under the
  426         Medicaid program; requiring a report to the
  427         Legislature on the usage and costs of telemedicine in
  428         Medicaid by a certain date; creating s. 456.4507,
  429         F.S.; providing the requirements for the reimbursement
  430         of telemedicine services by private health insurers;
  431         providing applicability; providing an effective date.