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.
   27  Be It Enacted by the Legislature of the State of Florida:
   29         Section 1. Section 456.4501, Florida Statutes, is created
   30  to read:
   31         456.4501Short 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         456.4502Definitions.— 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.