Florida Senate - 2014 (PROPOSED COMMITTEE BILL) SPB 7028 FOR CONSIDERATION By the Committee on Health Policy 588-01505-14 20147028__ 1 A bill to be entitled 2 An act relating to telemedicine; creating s. 456.4501, 3 F.S.; providing a short title, the “Florida 4 Telemedicine Act”; creating s. 456.4502, F.S.; 5 defining terms applicable to the act; creating s. 6 456.4503, F.S.; creating licensure and registration 7 requirements; providing applicability; authorizing the 8 health care boards and the Department of Health to 9 adopt rules; creating s. 456.4504, F.S.; providing 10 standards and prohibitions for the provision of 11 telemedicine; creating s. 456.4505, F.S.; providing 12 health insurer and health plan reimbursement 13 requirements for telemedicine; creating s. 456.4506, 14 F.S.; providing legislative findings; authorizing the 15 regulatory boards and the department to negotiate 16 interstate compacts for telemedicine; requiring an 17 annual report to the Governor and the Legislature on 18 the status of such compacts; requiring legislative 19 ratification of such compacts; creating s. 456.4507, 20 F.S.; providing requirements for reimbursement of 21 telemedicine services under the Medicaid program; 22 requiring a report to the Legislature on the usage and 23 costs of telemedicine in Medicaid by a certain date; 24 providing for future repeal; providing an effective 25 date. 26 27 Be It Enacted by the Legislature of the State of Florida: 28 29 Section 1. Section 456.4501, Florida Statutes, is created 30 to read: 31 456.4501 Short title.—Sections 465.4501-465.4507 may be 32 cited as the “Florida Telemedicine Act.” 33 Section 2. Section 456.4502, Florida Statutes, is created 34 to read: 35 456.4502 Definitions.— As used in this act, the term: 36 (1) “Act” means the Florida Telemedicine Act. 37 (2) “Advanced communications technology” means: 38 (a) Compressed digital interactive video audio, or data 39 transmissions; 40 (b) Real-time synchronous video or web-conferencing 41 communications; 42 (c) Secure web-based communications; 43 (d) Still-image capture or asynchronous store and forward; 44 (e) Health care service transmissions supported by mobile 45 devices (mHealth); or 46 (f) Other technology that facilitates access to health care 47 services or medical specialty expertise. 48 (3) “Distant site” means the location at which the 49 telemedicine provider delivering the health care service is 50 located at the time the service is provided via telemedicine. 51 (4) “Encounter” means an examination, consultation, 52 monitoring, or other health care service. 53 (5) “Health care provider” means a health care practitioner 54 or out-of-state licensed individual who provides health care 55 services within the scope of his or her professional license. 56 (6) “In person” means that a patient is in the physical 57 presence of the health care provider without regard to whether 58 portions of the encounter are conducted by other providers. 59 (7) “Originating site” means the location of the patient at 60 the time a health care service is being furnished via 61 telemedicine. The originating site may also mean the location at 62 which the advanced communications technology equipment that 63 facilitates the provision of telemedicine is located, with or 64 without the patient being present. An originating site is one of 65 the following: 66 (a) The office of a health care provider. 67 (b) A critical access hospital as defined in s. 1861(mm)(1) 68 of the Social Security Act. 69 (c) A rural health clinic as defined in s. 1861(aa)(2) of 70 the Social Security Act. 71 (d) A federally qualified health center as defined in s. 72 1861(aa)(4) of the Social Security Act. 73 (e) A hospital as defined in s. 1861(e) of the Social 74 Security Act. 75 (f) A hospital-based or critical access hospital-based 76 renal dialysis center, including satellites. 77 (g) A community mental health center as defined in s. 78 1861(ff)(3)(B) of the Social Security Act. 79 (h) A correctional facility. 80 (i) If the security and privacy of the advanced 81 communications technology can be verified by the distant site, 82 the patient’s home. 83 (8) “Patient presenter” means an individual who has 84 clinical background training in the use of advanced 85 communications technology equipment and who is available at the 86 originating site to present the patient, manage the cameras or 87 equipment, and perform any hands-on activity necessary to 88 successfully complete the telemedicine encounter. 89 (9) “Store and forward” means the type of telemedicine 90 encounter that uses still digital images of patient data for 91 rendering a medical opinion or diagnosis. The term includes the 92 asynchronous transmission of clinical data from one site to 93 another. 94 (10) “Telemedicine” means the use of advanced 95 communications technology by a health care provider or by a 96 health care provider acting under an appropriate delegation or 97 supervision as may be required by the appropriate board, or the 98 department if there is no board, to provide a health care 99 services. Services provided through telemedicine may include 100 patient assessment, diagnosis, consultation, treatment, 101 prescription of medicine, transfer of medical data, or other 102 medical-related services. The term does not include audio-only 103 calls, e-mail messages, or facsimile transmissions. Telemedicine 104 also includes telehealth and telemonitoring. 105 (11) “Telemedicine provider” means a health care provider 106 who provides telemedicine services to a patient physically 107 located in this state. 108 Section 3. Section 456.4503, Florida Statutes, is created 109 to read: 110 456.4503 Licensure and registration requirements.— 111 (1) An out-of-state health care provider who provides 112 telemedicine across state lines to a patient physically located 113 in this state must have a Florida license to practice a health 114 care profession or must meet the following telemedicine 115 requirements: 116 (a) Hold an unrestricted active license to practice his or 117 her profession in the health care provider’s state of residency; 118 and 119 (b) Complete telemedicine registration with the department 120 through a procedure established by the appropriate board for the 121 health care provider’s area of practice, or the department if 122 there is no board; and 123 (c) Pay a biennial registration fee set by the applicable 124 board, not to exceed $50. 125 (2) A registration issued under this section, regardless of 126 the location of the telemedicine provider, shall be treated as a 127 license for disciplinary action by the appropriate board in this 128 state, or the department if there is no board. A telemedicine 129 provider licensed in this state or registered to practice 130 telemedicine in accordance with this act is subject to this act, 131 the jurisdiction of this state’s applicable board, other legal 132 and regulatory authorities in this state, as applicable, and the 133 jurisdiction of the courts of this state. The telemedicine 134 provider shall also make available any pertinent records upon 135 request of the board, the department, or the regulatory 136 authority. Failure to comply with such request may result in 137 revocation of the telemedicine provider’s license or 138 registration at the discretion of the applicable board, or the 139 department if there is no board, or a fine as established by the 140 applicable board or the department, as applicable. 141 (3) Registration as a telemedicine provider is required 142 only for those out-of-state health care providers who engage in 143 the practice of telemedicine across state lines more than 10 144 times per calendar year. Physician consultations that occur on 145 an emergency basis are exempt from registration requirements. 146 (4) This section does not prohibit or require licensure or 147 registration for consultations between an out-of-state health 148 care provider and a health care practitioner in this state or 149 for the transmission and review of digital images, pathology 150 specimens, test results, or other medical data by an out-of 151 state health care provider or other qualified providers related 152 to the care of a patient in this state. 153 (5) This section does not preclude a health care provider 154 who acts within the scope of his or her practice from using the 155 technology of telemedicine within his or her practice or under 156 the direction and supervision of another health care provider 157 whose scope of practice includes the use of such technology. A 158 health care provider or patient presenter acting under the 159 direction and supervision of a physician through the use of 160 telemedicine may not be interpreted as practicing medicine 161 without a license. However, a health care provider must be 162 trained in, educated on, and knowledgeable about the procedure 163 and technology and may not perform duties for which the 164 practitioner does not have sufficient training, education, and 165 knowledge. Failure to have adequate training, education, and 166 knowledge is grounds for disciplinary action by the appropriate 167 board or the department if there is no board. 168 (6) The boards, or the department if there is no board, may 169 adopt rules to administer the requirements of this act and must 170 repeal rules that are inconsistent with this act, including 171 rules that prohibit the use of telemedicine in this state. The 172 appropriate board, or the department if there is no board, may 173 also develop standards and adopt rules relating to requirements 174 for patient presenters. Such rules may not require the use of 175 patient presenters in telemedicine services if special skills or 176 training is not needed for a patient to participate in the 177 encounter. 178 Section 4. Section 456.4504, Florida Statutes, is created 179 to read: 180 456.4504 Telemedicine standards.— 181 (1) The standard of care as provided in s. 766.102 is the 182 same regardless of whether a health care provider provides 183 health care services in person or by telemedicine. The 184 applicable board for each health care provider, or the 185 department if there is no board, may adopt rules specifically 186 related to the standard of care for telemedicine. 187 (2) A telemedicine provider providing telemedicine services 188 under this act is responsible for the quality of the equipment 189 and technology employed and for its safe use. Telemedicine 190 equipment and advanced communications technology must, at a 191 minimum, be able to provide the same information to the 192 telemedicine provider as the information that would be obtained 193 in an in-person encounter with a health care provider which 194 enables the telemedicine provider to meet or exceed the 195 prevailing standard of care for the practice of the profession. 196 (3) The telemedicine provider is not required to conduct a 197 patient history or physical examination of the patient before 198 engaging in a telemedicine encounter if the telemedicine 199 provider conducts a patient evaluation sufficient to meet the 200 community standard of care for the services provided. 201 (4) For the purposes of this act, the nonemergency 202 prescribing of a legend drug based solely on an electronic 203 questionnaire without a visual examination is considered a 204 failure to practice medicine with the level of care, skill, and 205 treatment which is recognized by a reasonably prudent physician 206 or other authorized practitioners and is not authorized under 207 this act. 208 (5) A controlled substance may not be prescribed through 209 the use of telemedicine for chronic, nonmalignant pain. 210 (6) Medical records must be kept by each telemedicine 211 provider that participates in a patient telemedicine encounter 212 to the same extent as required for an in-person encounter under 213 state and federal law. Telemedicine providers are encouraged to 214 create electronic health records to record the encounter and to 215 transmit information in the most efficient manner possible. 216 (7) Any medical records generated, including records 217 maintained via video, audio, electronic, or other means, due to 218 a telemedicine encounter must conform to the confidentiality and 219 recordkeeping requirements of federal law, nationally recognized 220 health care accreditation organizations, and the laws and rules 221 of this state regardless of where the medical records of a 222 patient in this state are maintained. 223 (8) Telemedicine technology used by a telemedicine provider 224 must be encrypted and must use a recordkeeping program to verify 225 each interaction. 226 (9) In those situations in which a telemedicine provider 227 uses telemedicine technology provided by a third-party vendor, 228 the telemedicine provider must: 229 (a) Require a business associate agreement with the third 230 party vendor; and 231 (b) Ensure that the third-party vendor complies with the 232 administrative, physical, and technical safeguards and standards 233 set forth by the Health Information Technology for Economic and 234 Clinical Health (HITECH) Act and by federal regulations 235 implemented pursuant to HITECH. 236 (10) If a patient provides any of the telemedicine 237 technology, such as a patient-owned smartphone, tablet, laptop, 238 desktop computer, or video equipment, the telemedicine provider 239 must take steps to ensure that such technology: 240 (a) Complies with the administrative, physical, and 241 technical safeguards set forth by HITECH and by federal 242 regulations implemented pursuant to HITECH; and 243 (b) Is appropriate for the medical discipline for which the 244 technology is provided. 245 Section 5. Section 456.4505, Florida Statutes, is created 246 to read: 247 456.4505 Requirements for reimbursement.— 248 (1) If health care services provided through telemedicine 249 are an included benefit in a health insurance policy or health 250 plan coverage, such services must be paid in an amount equal to 251 the amount that a health care provider would have been paid had 252 such services been furnished without the use of advanced 253 communications technology. 254 (2) Reimbursement amounts for telemedicine providers at the 255 distant site and the originating site and any originating fees 256 are to be determined between the individual telemedicine 257 provider and the health insurer or health plan. 258 (3) This section does not preclude a health insurer or 259 health plan from imposing a deductible, a copayment, or a 260 coinsurance requirement for a health care service provided 261 through telemedicine if the deductible, copayment, or 262 coinsurance does not exceed the amount applicable to an in 263 person encounter for the same health care service. 264 (4) A health insurance policy or health plan may limit 265 coverage for health care services that are provided through 266 telemedicine to telemedicine providers that are in a network 267 approved by the health insurer or health plan without regard to 268 s. 627.6471 or s. 627.6472. 269 Section 6. Section 456.4506, Florida Statutes, is created 270 to read: 271 456.4506 Interstate compacts for telemedicine.—The 272 Legislature finds that lack of access to high-quality, 273 affordable health care services is an increasing problem, both 274 in this state and nationwide. The Legislature finds that this 275 problem could be alleviated by greater interstate cooperation 276 among, and by the mobility of, health care providers through the 277 use of telemedicine. Therefore, the executive directors of the 278 boards, together with the department, may negotiate one or more 279 interstate compacts for the provision of telemedicine services 280 across state lines. The department shall annually submit a 281 report on the status of any negotiated compacts to the Governor, 282 the President of the Senate, and the Speaker of the House of 283 Representatives. Any negotiated compacts shall be submitted by 284 December 31 for ratification by the Legislature during the next 285 regular legislative session. 286 Section 7. Section 456.4507, Florida Statutes, is created 287 to read: 288 456.4507 Telemedicine services under Medicaid.— 289 (1) The Agency for Health Care Administration shall 290 reimburse Medicaid services provided through telemedicine in the 291 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 (6). 294 (2) Telemedicine services reimbursed under Medicaid must 295 meet the standards and requirements of this act. 296 (3) Except as provided in subsection (6), the agency may 297 not require in-person contact between a health care provider and 298 Medicaid recipient as a prerequisite for payment for services 299 appropriately provided through telemedicine in accordance with 300 generally accepted health care practices and standards 301 prevailing in the applicable health care community at the time 302 the services are provided. 303 (4) A Medicaid service that is provided through a fee-for 304 service or managed care program may not be denied as a 305 creditable Medicaid service solely because that service is 306 provided through telemedicine. 307 (5) Reimbursement of telemedicine services under Medicaid 308 shall be the amount negotiated between the parties involved to 309 the extent permitted under state and federal law. Regardless of 310 the reimbursement methodology or amount, telemedicine providers 311 located at the originating site and the distant site should both 312 receive reimbursement based on the services rendered, if any, 313 during the telemedicine encounter. 314 (6) If, after implementation, the agency determines that 315 the delivery of a particular service through telemedicine is not 316 cost-effective or does not adequately meet the clinical needs of 317 recipients and the determination has been documented, the agency 318 may discontinue Medicaid reimbursement for that telemedicine 319 service. 320 (7) The agency shall submit a report on the usage and 321 costs, including savings, if any, associated with the provision 322 of health care services through telemedicine under the Medicaid 323 program by January 1, 2017, to the President of the Senate, the 324 Speaker of the House of Representatives, and the minority 325 leaders of the Senate and House of Representatives. 326 (8) This section is repealed June 30, 2017. 327 Section 8. This act shall take effect July 1, 2014.