Generally, telehealth providers must be licensed within the state where the patient resides or is receiving care. In response to the COVID-19 pandemic, nearly every state issued temporary waivers to medical professionals licensed in other U.S. states, which allowed providers to offer telehealth services to patients across state lines without the need to obtain licensing from the particular state in which the patient resided or received care. To combat the pandemic and expand telehealth services within the state, the Florida Department of Health issued an emergency order on March 16, 2020, which permitted medical professionals unlicensed in Florida to provide healthcare services to Florida residents affected by the coronavirus. Florida’s telehealth emergency waivers ended on June 26, 2021, after Governor Ron DeSantis decided to let the waivers expire.
Now, other states are also gradually rolling back these telehealth emergency waivers afforded to out-of-state healthcare providers during the early stages of the pandemic in favor of more permanent changes to regulate interstate telehealth delivery. In particular, Florida has been a first mover in establishing a permanent registration telehealth policy. During the 2019 legislative session, Florida lawmakers passed section 456.47, Florida Statutes, which authorized out-of-state healthcare providers to furnish telehealth services to patients residing in Florida and established standards of practice for telehealth services. After Governor DeSantis signed the law on June 25, 2019, the law took effect on July 1, 2019. Under section 456.47, all out-of-state healthcare providers are required to register with the Florida Department of Health in order to furnish telehealth services and may not provide in-person services to Florida patients.
More recently, Governor DeSantis signed a new law amending Chapter 456.47 to remove prior restrictions on the prescription of controlled substances via telehealth on April 6, 2022. Under the new law, telehealth providers may prescribe Florida patients all controlled substances except for Schedule II substances. While this amendment does permit out-of-state healthcare providers to prescribe controlled substances to Florida patients via telehealth, providers should also be aware of federal law that also governs the prescription of controlled substances. Under the Ryan Haight Online Pharmacy Consumer Protection Act, a controlled substance may not be prescribed by means of the internet without a valid prescription. Providers are required to conduct at least one in-person medical examination of a patient before prescribing a controlled substance to patients. The Ryan Haight Act law does provide seven exceptions to the in-person requirement, but these exceptions are narrow and apply only to providers in an institutional setting.
Another approach to telehealth licensing that has started to gain traction involves the adoption of an interstate compact, such as the Interstate Medical Licensure Compact. The compact was created to allow medical professionals an expedited alternative to obtain additional state medical licensure to qualify to practice medicine among IMLC member states. To date, the IMLC is composed of 33 states, the District of Colombia, and Guam. Other states such as Massachusetts, New York, and North Carolina have passed legislation to be admitted to the IMLC. Under the current administration, Florida is unlikely to join the IMLC as admission to the compact would require the Florida Legislature to overhaul the state’s health care policy and pass new stand-alone bills which would be a significant commitment.
Looking forward to 2023, two key issues to keep an eye out for includes potential legislation surrounding telehealth payment parity and the increase of telehealth fraud.
In April 2022, the Federation of State Medical Boards (FSMB) released an updated telemedicine policy for the first time since 2014. The FSMB acknowledged that rapid growth and utilization of telemedicine technologies have dramatically transformed conventional healthcare delivery. As such, the FMSB intends to advise state medical boards on proper procedures to regulate the use of telemedicine technologies in medical practice for the benefit of the public. The FMSB observed that limiting insurance coverage for healthcare services delivered via telehealth may increase inequities in the access to healthcare. The FMSB recommends that health insurance plans should provide the same coverage extended for the cost of healthcare services delivered in-person on the same basis as those delivered through telemedicine.