In February, I reported on a number of law or rule changes and proposed bills. A rule (64B8-9.0141 – Telemedicine) arising from F. S. 456 (Authority to our Department of Health) was finalized on March 7, 2016 which added definitions and standards for telehealth. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling will continue discuss future language for us. As you read the following text consider whether or not AND how each section might be interpreted for our clinical and mental health services. I have added a couple of recent relevant rules that seem to indicate a move towards standards for telemental health. What do you think?
64B8-9.0141 – Telemedicine
(1) “Telemedicine” means the practice of medicine by a licensed Florida physician or physician assistant where patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic communications. Telemedicine shall not include the provision of health care services only through an audio only telephone, email messages, text messages, facsimile transmission, U.S. Mail or other parcel service, or any combination thereof. (We now have similar language in our Rule 64B4 – 2.002 Definition of Supervision (3) that allows up to 50% of supervision of registered interns to be provided via face-to-face electronic methods (not telephone only communication))
(2) The standard of care, as defined in Section 456.50(1)(e), F.S., shall remain the same regardless of whether a Florida licensed physician or physician assistant provides health care services in person or by telemedicine.
(3) Florida licensed physicians and physician assistants providing health care services by telemedicine are responsible for the quality of the equipment and technology employed and are responsible for their safe use. Telemedicine equipment and technology must be able to provide, at a minimum, the same information to the physician and physician assistant which will enable them to meet or exceed the prevailing standard of care for the practice of medicine. (64B4 – 2.002 also in (3) The supervisor and the intern are responsible for maintaining the confidentiality of the clients during both in-person and online or interactive supervisory sessions.)
(4) Controlled substances shall not be prescribed through the use of telemedicine except for the treatment of psychiatric disorders. This provision does not preclude physicians from ordering controlled substances through the use of telemedicine for patients hospitalized in a facility licensed pursuant to Chapter 395, F.S.
(5) Prescribing medications based solely on an electronic medical questionnaire constitutes the failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent physicians as being acceptable under similar conditions and circumstances, as well as prescribing legend drugs other than in the course of a physician’s professional practice.
(6) Physicians and physician assistants shall not provide treatment recommendations, including issuing a prescription, via electronic or other means, unless the following elements have been met:
(a) A documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed.
(b) Discussion between the physician or the physician assistant and the patient regarding treatment options and the risks and benefits of treatment.
(c) Maintenance of contemporaneous medical records meeting the requirements of Rule 64B8-9.003, F.A.C.
(7) The practice of medicine by telemedicine does not alter any obligation of the physician or the physician assistant regarding patient confidentiality or recordkeeping.
(8) A physician-patient relationship may be established through telemedicine.
(9)(a) Nothing contained in this rule shall prohibit consultations between physicians or the transmission and review of digital images, pathology specimens, test results, or other medical data by physicians or other qualified providers related to the care of Florida patients.
(b) This rule does not apply to emergency medical services provided by emergency physicians, emergency medical technicians (EMTs), paramedics, and emergency dispatchers. Emergency medical services are those activities or services to prevent or treat a sudden critical illness or injury and to provide emergency medical care and prehospital emergency medical transportation to sick, injured, or otherwise incapacitated persons in this state.
(c) The provisions of this rule shall not apply where a physician or physician assistant is treating a patient with an emergency medical condition that requires immediate medical care. An emergency medical condition is a medical condition manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical attention will result in serious jeopardy to patient health, serious impairment to bodily functions, or serious dysfunction of a body organ or part.
(d) The provisions of this rule shall not be construed to prohibit patient care in consultation with another physician who has an ongoing relationship with the patient, and who has agreed to supervise the patient’s treatment, including the use of any prescribed medications, nor on-call or cross-coverage situations in which the physician has access to patient records.
Rulemaking Authority 458.331(1)(v) FS. Law Implemented 458.331(1)(v) FS. History‒New 3-12-14, Amended 7-22-14, 10-26-14.
– Catherine L. Waltz, PhD, LCSW is an adjunct professor in the graduate program of the School of Social Work, Barry University. She is a continuing education provider in the state of Florida providing courses on professional ethics, laws and rules, supervision, mental health error prevention and is a specialist in domestic violence.
The educational commentaries provided by Dr. Waltz do not constitute a legal opinion. If legal advice is needed, it is recommended that contact be made with an attorney qualified in the jurisdiction in which you practice or is applicable to your case. We recommend that you use your knowledge of the law and your code of ethics in conjunction with this and any other information when deciding upon your course of action.