Doctors from around the world may decide that they would like to practice medicine in the State of Florida. Maybe it’s because of the beautiful weather and white sandy beaches, no state income taxes, its proximity to Latin America and the Caribbean, large immigrant and tourist population and Florida’s world-renowned hospitals and healthcare providers. No matter the reason, the process of moving to Florida to practice medicine has its challenges. These challenges may seem insurmountable without guidance from experienced attorneys. There’s a two-step process to practicing medicine in Florida: (1) the immigration visa process and (2) obtaining your license to practice medicine in Florida.
Certification and Residency Programs
Foreign Doctors wishing to practice clinical medicine in an unsupervised setting must be licensed by the Florida Board of Medicine (or Board of Osteopathic Medicine). All Doctors including those trained outside the U.S. are required to pass all four tests of the United States Medical Licensing Exam (USMLE) in order to obtain their Florida Medical License. International Medical Graduates (IMG) must be certified by the Educational Commission for Foreign Medical Graduates (ECFMG). To become certified by ECFMG, an IMG must pass three USMLE exams, consisting of 1 multiple choice exam and two separate exams testing clinical knowledge and clinical skills.
Once a doctor receives ECFMG certification, she may apply for a hospital residency. The Electronic Residency Application Service (ERAS) is the most common way for doctors to enter into a residency program, which can last from three to eight years depending on the specialty that the IMG is seeking. Doctors have to complete a residency program regardless of their overseas training. IMGs who have received a visa are eligible to apply for a residency program in the United States.
Doctors are encouraged to apply to a minimum of 20 or more programs to increase their odds of “matching” or being accepted into a residency program. Registration can be completed through the National Resident Matching Program (NRMP), which can match you to a residency program based on individual preferences.
Licensure by Examination
According to Fla. Stat. §458.311, Any person desiring to be Florida licensed physician, who does not hold a valid license in any state may submit an application to the Florida Department of Health (DOH). The DOH has to certify that the person has: (a) completed the application form and paid the application fee; (b) is at least 21 years of age; (c) is of good moral character; (d) has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician; and (e) if you graduated from medical school after October 1, 1992 you can prove that you have completed the equivalent of 2 academic years of pre-professional, post-secondary education prior to entering medical school.
Additionally, there are several medical education and postgraduate training requirements. A foreign doctor may satisfy this requirement if they can show that they graduated from an allopathic (or osteopathic) foreign medical school registered with the World Health Organization and certified pursuant to Florida statute as having met the standards required to accredit medical schools in the United States or reasonably comparable standards. If the language of instruction of the foreign medical school is other than English, the doctor must demonstrate competency in English through presentation of the ECFMG English proficiency certificate or by a satisfactory grade on the Test of Spoken English of the Educational Testing Service or similar test approved by the rule of the board. Finally, they must have completed an approved residency of at least 1 year.
Alternatively, if the doctor graduated from an allopathic foreign medical school which has not been certified pursuant to Florida statute, she may still be eligible if she has had her medical credentials evaluated by the ECFMG, holds an active, valid certificate issued by the ECFMG and has passed the examination used by the ECFMG. The doctor is also required to have completed an approved residency of at least 1 year, unless they graduated after October 1, 1992, then the applicant is required to have completed and approved residency or fellowship of at least 2 years in one specialty area.
The applicant also has to submit their fingerprints to the DOH for a criminal background check to be conducted. The Board of Medicine will not certify to the DOH any applicant for licensure who is under investigation in another jurisdiction for an offense which would constitute a violation of the laws pertaining to medical doctors until the investigation is completed. Finally, the applicant has to obtain a passing score on the USMLE.
In spite of those doctors who have graduated from foreign medical schools which have not been certified pursuant to Florida statute, a graduate of a foreign medical school is not required to present the certificate issued by the ECFMG or pass the examination utilized by the ECFMG if they have: (a) received a bachelor’s degree from an accredited United States college or university; (b) studied at a medical school which is recognized by the World Health Organization; (c) completed all of the formal requirements of the foreign medical school, except the internship or social service requirements, and has passed part I of the National Board of Medical Examiners examination or the ECGMG examination equivalent; and (d) has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the ECFMG examination equivalent.
Licensure by Endorsement
According to Fla. Stat. §458.313, a doctor can obtain a Florida medical license by endorsement if they apply and the board certifies that: (a) she has met the requirements of paragraphs (b)-(g) for licensure by examination; (b) obtained a passing score on the USMLE after January 1, 2000; and (c) has submitted evidence of active licensed practice of medicine in another jurisdiction, for at least 2 of the immediately preceding 4 years, or evidence of successful completion of either a board-approved postgraduate program within 2 years preceding filing of an application or a board-approved clinical competency examination within the year preceding the filing of an application for licensure.
“Active licensed practice of medicine” means the practice of medicine by physicians, including those employed by any governmental entity in community or public health, medical directors who are practicing medicine, and active teaching faculty of an accredited medical school. The Board of Medicine may require an application for licensure by endorsement to take and pass the appropriate licensure examination prior to certifying the applicant as eligible for licensure.
There are tens of thousands of unlicensed foreign-trained doctors throughout the U.S. who have medical training and experience but are unable to practice in the United States. By the year 2030, experts anticipate that the US will be facing a shortage of roughly 100,000 doctors throughout the country. Spanish-speaking doctors and other foreign language speaking doctors are in high demand. Unfortunately, thousands of foreign doctors living in the US are working as waiters, parking garage attendants and other jobs that don’t utilize their medical training because they are unable to obtain their license. Florida lawmakers have used Fla. Stat. §456.021(1) to express their desire to encourage the use of foreign-speaking Florida residents duly qualified to become actively qualified in their professions so that all people of this state may receive better services. To this end, legislators passed a law stating that all persons who have successfully completed their studies and are deemed qualified for examination for a professional license must take that examination in English unless 15 or more applicants request that examination be administered in their native language. If you are able to obtain a Florida medical license you would be helping to alleviate the physician shortage and provide healthcare services to those who are in desperate need of doctors who speak the same language and have similar cultural backgrounds.
It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.
All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.
President Trump he has not taken a firm stance publicly in favor of or opposed to the use of medical marijuana. Currently, he intends to leave the medical marijuana issue up to the individual states. The 2016 fiscal year omnibus appropriations bill appears to be in line with Trump as it contains language prohibiting the Department of Justice from meddling in state medical marijuana laws.
According to a Department of Health report, the state registry now has 16,614 patients. A recent state revenue impact study projects that by 2022 there will be approximately 472,000 medical marijuana patients and $542 million in sales.
Many activists expect that there will be several lawsuits related to SB8A. Legislators anticipated this and have added language that divides SB8A so that if certain parts are held unconstitutional the court would only invalidate those parts without invalidating the entire law.
Under SB8A, a “qualified physician” is a person who holds an active and unrestricted license to practice medicine in compliance with the physician education requirements. In order to be approved as a qualified physician, the physician must successfully complete a 2-hour course and exam by either the Florida Medical Association or the Florida Osteopathic Medical Association. The exam will not cost more than $500. This requirement also applies to those seeking to become Medical Directors in medical marijuana treatment centers (“MMTC”).
A “Medical Marijuana Treatment Center” means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department. As you can see, the definition of an MMTC is very broad and includes virtually every type of business in the medical marijuana industry.
A qualified physician may not be employed by, or have any direct or indirect economic interest in, a medical marijuana treatment center or marijuana testing laboratory. This sentence is important because it means that not every physician is bound by this rule. If you are a physician and you have not taken the course and exam to become certified so that you can certify marijuana to your terminally ill patients then this law doesn’t apply to you. For example, if you are a dermatologist who does not treat any terminally ill patients and you are not a “qualified physician” for purposes of providing marijuana to terminally ill patients then you are not prohibited from being employed by or having an economic interest in an MMTC or marijuana testing laboratory (“MTL”). An MTL or “Independent testing laboratory” means a laboratory, including the managers, employees, or contractors of the laboratory, which has no direct or indirect interest in a dispensing organization.
This aforementioned provision of SB8A places broad limits on the types of marijuana facilities and businesses that a qualified physician is permitted to have a financial interest in. MMTCs and MTLs are off-limits to qualified providers. Non-Qualified providers are thus able to work for or have a financial interest in medical marijuana retailers, medical marijuana delivery devices, and medical marijuana delivery companies to name a few.
A qualified physician may not authorize a patient to receive more than three 70-day supply limits of marijuana. However, a physician may request an exception to the daily dose amount limit electronically. Further, a physician must evaluate an existing patient at least once every 30 weeks prior to issuing a new physician certification.
Physician’s Certification means that a physician may authorize a qualified patient to receive marijuana and a marijuana delivery device (i.e. vape pen) from a MMTC. A physician may certify that a patient is in need of medical marijuana only after she has:
A physician certifying the use of medical marijuana for their patient must use a standardized informed consent form adopted by the Board of Medicine or Board of Osteopathic Medicine, which must include, at a minimum the following:
That the patient’s de-identified health information contained in the physician certification and medical marijuana use registry may be used for research purposes.
Medical Marijuana Use Registry
Physicians should be aware that a review panel will be created by their respective Boards to review all physician certifications submitted to the medical marijuana use registry. The panel will track and report the number of physician certifications and the qualifying medical conditions, dosage, supply amount, and form of marijuana certified. The panel will report the data by individual physician and in aggregate formats by county and statewide. On the surface, it appears that the Board is just collecting data from those who certify patients to receive medical marijuana. However, it also appears that the Board is analyzing patterns and potential abuse by physicians who over prescribe or prescribe at a much higher rate than other qualified physicians that are similarly situated. At this time, I am not sure what action the Board would take if any, if they determine that there is some irregularity with the prescribing pattern of a particular physician.
The medical marijuana use registry must be accessible to qualified physicians and MMTCs to verify the authorization of a qualified patient or a caregiver to possess marijuana or a marijuana delivery device and record the marijuana or marijuana delivery device dispensed. The goal of the registry is to prevent an active registration of a patient by multiple physicians who can then receive and possess an amount of marijuana that exceeds the legal limits. The fear is that this will lead to an abuse of the Schedule I drug.
SB8A doesn’t contain many penalties for physicians apart from the other laws and Board rules that currently exist to which physicians are bound by. However, I’m confident that with the proliferation of medical marijuana use by terminal patients and the tracking of prescribing patterns by the Board that there will be additional penalties for physician-owners and qualified physicians on the horizon. A qualified physician who issues a physician certification for marijuana or a marijuana delivery device and receives compensation from a MMTC related to the issuance of the physician certification for marijuana or a marijuana delivery device is subject to disciplinary action under the applicable practice act and Fla. Statute. 456.072(1)(n).
***This blog post does not constitute legal advice and is only intended for educational purposes only. You should consult a licensed attorney in the State of Florida that specializes in healthcare law.***
As you may be aware, On November 8, 2016, Florida voters approved the use of Medical Marijuana in a constitutional ballot initiative called Amendment 2. This Amendment approved the use of Medical Marijuana in treatment for patients who suffer from specific debilitating medical conditions. These debilitating medical conditions include, but, are not limited to, cancer, AIDS, PTSD, glaucoma, Parkinson’s Disease, epilepsy, and Crohn’s disease. Physicians may also prescribe Medical Marijuana for “other debilitating medical conditions of the same kind or class” as those mentioned above and “for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” Those looking to do business in the medical marijuana industry must proceed with some caution because even with the passage of Amendment 2 marijuana is still considered a controlled substance consumption of which is illegal under federal law.
Who Can Prescribe Medical Marijuana
Believe it or not, medical marijuana is a Schedule I drug and is regulated by the Florida Department of Health’s Office of Compassionate Use. In order to prescribe Medical Marijuana to a patient a physician must be licensed to practice medicine in Florida and certified by the Department of Health (“DOH”). Further, the physician must complete an 8-hour course and exam offered by either the Florida Medical Association (“FMA”) or Florida Osteopathic Medical Association (“FMOA”). Additionally, if the physician is a medical director of a Medical Marijuana Treatment Centers (“MMTC”) they are required to take a 2-hour course.
Restrictions on Use
Currently, Marijuana is only supposed to be used for the treatment of medical conditions and any recreational use is prohibited. Medical Marijuana may only be consumed in the form of food, tinctures, aerosols, oils, ointments, or related products. Notably missing is the permissibility to consume or use Medical Marijuana in a plant form that can be smoked.
Further, medical marijuana may only be prescribed to eligible patients as defined in Fla. Stat. §499.0295 as having a “terminal condition”. Patients will be classified as terminally ill only if two physicians designate them as such.
Additionally, Amendment 2 makes no accommodations for the use of medical marijuana at the workplace, public places, or school settings. Currently, federal and private program payors are not required to reimburse patients for medical marijuana treatment.
The DOH must register and regulate MMTCs that produce and distribute medical marijuana. Identification cards must be issued to patients and caregivers. In order to receive medical marijuana a patient must be: (1) a permanent Florida resident; (2) a patient of the ordering physician for at least three months; and (3) diagnosed with a debilitating medical condition.
Reaction to the Legalization of Medical Marijuana
The Trump Administration has stated that it intends to enforce federal law that prohibits the use of recreational marijuana, but they are unlikely to prohibit the legitimate use of medical marijuana for treatment purposes.
However, in some cities and counties throughout Florida, legislators and local officials are still trying to determine whether medical marijuana is even legal despite its overwhelming support by voters in Amendment 2. Throughout Florida, many cities are ill-prepared to regulate various aspects of the medical marijuana industry prior to the September deadline requiring its statewide availability. Even after the Trump Administration has made a public statement regarding medical marijuana officials are weary about implementing regulations because it is still federally prohibited. However, at least twenty-eight states have operated without significant intervention from the federal government after they have legalized either recreational or medical marijuana.
Many physicians welcome Amendment 2 and feel that it’s long overdue. Physicians are educating themselves on administering medical marijuana to their patients. For example, they are learning about the various strains of Cannabis and how certain illnesses may respond differently to a particularly strain and dosage. Many doctors prefer to prescribe medical marijuana rather than narcotics, which can be highly addictive to the patient. As a country, we are facing an opioid epidemic and by using medical marijuana as an alternative when appropriate may help to curb the addiction.
Medical Marijuana is Big Business
According to reports, there might be as many as 450,000 patients throughout Florida who may be eligible to receive medical marijuana treatment. That number is expected to rise as the types of illnesses that are treatable by marijuana becomes less narrow and not limited to debilitating medical conditions or terminal conditions. According to New Frontier’s projections, medical marijuana users in Florida will spend an estimated $200 million annually, and by 2020 Florida will account for 14% of the permissible marijuana use in the country.
There will likely be an expansion of dispensing organizations but it will not be easy. Currently, there are seven approved dispensing organizations in Florida. The following is a non-exhaustive list that the DOH considers when dispensing organizations apply:
Individuals seeking to enter the medical marijuana industry face several challenges due to federal laws that prohibit its manufacture, distribution, and use. Banks, insurance companies, and real estate brokers are hesitant to contract with medical marijuana companies due to the existing federal laws. Since it is illegal to operate a medical marijuana company on the federal level banks can’t or are unwilling to loan them money out of fear that there will be retribution for funding an illicit enterprise. This will only change if Congress passes a measure to legalize the medical marijuana industry.
Legislators must quickly determine the ongoing medical marijuana education requirements for physicians and how it will be regulated. Providers will increasingly enter into the business because the law effectively shields them from civil or criminal actions that arise from their prescribing of medical marijuana. However, physicians may face discipline for wrongfully prescribing low-THC marijuana or medical marijuana. Physicians must ensure that they receive the requisite informed consent prior to prescribing medical marijuana. It’s still uncertain if Amendment 2 will expand the number of dispensaries and by how many. Also, if you are a non-physician looking to enter into the medical marijuana business it is not clear what role one can legally play in the medical marijuana industry other than owning a dispensing organization.
As a child, my mother always stressed the importance of being neat and organized. She told me that I should be able to walk into my house in the dark and find anything that I need because I know exactly where it is. At the time, I didn’t know how those values would apply to not only my personal life but also my business life. With that being said, life gets in the way and there are days when my office or my house is in disarray. This reduces my productivity because I have to spend time searching for important documents at my office or my car keys at home.
I place a lot of emphasis on maintaining a neat and organized medical practice for all of my clients because it will make their life easier for numerous reasons. The best way to maintain a neat and organized medical practice is to implement policies and procedures that you and your employees must strictly follow. These policies and procedures can range from physical security of the facility, security of HIPAA protected information, employee time-keeping, janitorial services, medical substances and pharmaceutical drug internal audits, etc.
Everyone on the staff should be held accountable for the tasks that they perform or fail to perform. As the owner of the practice, you should periodically review the procedural tasks to make sure that everyone is performing their duties adequately and on-time. It only takes one missed log entry for a crisis to arise. This brings me to my next point, you should implement a policy where everyone on your staff must sign off on or use a unique identifier and password that only they have. This is important so that you can trace most of the activities that occur in your practice. Providers have to play “big brother” and watch over their practice because as you let things slide so will your staff and certain policies and protocols will be abandoned.
It is not unusual for a provider to contact me after a regulatory authority, such as the Florida Department of Health (“DOH”) or the Centers for Medicare & Medicaid Services (“CMS”) has contacted them about a potential violation within their practice (i.e. billing). Typically, these regulatory bodies make certain requests for documentation in their correspondence. I am often surprised by how unorganized the medical practice’s files are and the lack of adequate policies and procedures within the practice. As I mentioned earlier, I understand that life gets in the way, but being organized and having policies and procedures in place to maintain organization should be a priority. Lack of time will not be a valid excuse for the regulators. In fact, there are several state and federal record-keeping requirements that a medical practice must strictly adhere to or run the risk of receiving fines and penalties. Take one day or weekend and work alongside your staff to clean up those files and perform an audit of your inventory.
The following is a sample of some of the steps that I would take to ensure that my medical practice is neat and organized:
In the event that you have to self-report or if any state or federal regulatory authorities contacts your practice for a potential violation of a law or rule you should be as prepared as possible. Implement policies and procedures into your medical practice that will protect you and will ensure that your practice runs efficiently and smoothly. A healthcare attorney can assist you in creating a fully functioning policy and procedure manual specific to your practice.
Most doctors have various licenses that provide them with unique identification numbers. If any of these identification numbers find their way into the wrong hands it can be detrimental to the healthcare provider’s practice, their patients, and the public. Doctors hire support staff to run their practice efficiently by perform tasks that they don’t have time to do or don’t have the training to perform. This employer-employee relationship requires a certain level of trust from both parties because a bad act by either party can have a negative impact on the other party’s license, privileges, or reimbursement for services. Some of the support staff working in a doctor’s office may have access to HIPAA-protected information and a doctor’s unique identification numbers, such as his NPI and DEA numbers. What should you do if one of your employees steals your DEA number and uses it to self-prescribe controlled substance through e-prescribing or traditional prescription pads? What if they use your DEA number to order controlled substances for the practice without your knowledge or consent? Doctors should also be concerned with their potential liability for the unauthorized use of their DEA number.