As health care providers and patients each contend with the unique challenges presented by the COVID-19 virus, relief to Florida patients comes in the form of a rare Emergency Order which temporarily allows, among other things, an expansion of Florida’s telemedicine services. The Emergency Order (State of Florida Department of Health (the “DOH”) No. 20-002) was issued on Monday, March 16, 2020 by Florida’s Surgeon General, Dr. Scott Rivkees.

The purpose of the Emergency Order is to mitigate the effects of COVID-19 by limiting the need for face-to-face interaction between health care professionals and patients during a time where the need to contain and limit the spread of the virus is paramount. The Emergency Order temporarily suspends or modifies a number of restrictions and requirements for health care providers for patients in Florida for a period of thirty (30) days.

Health care providers affected by Emergency Order DOH 20-002 include: (a) Out-of-state health care professionals not licensed or registered in Florida, who temporarily may provide health care services to patients in Florida in person or through telehealth services under certain conditions; (b) Controlled substance prescribing practitioners, who may temporarily issue renewal prescriptions through a telehealth examination under certain circumstances; (C) Physicians qualified under Florida’s medical marijuana statute, who may temporarily issue a physician certification to an existing patient without a face-to-face examination under certain situations; and (D) Emergency medical services training programs, which can now temporarily substitute supervised remote live videoconferencing or simulation for portions of the clinical instruction hours and field internship hours required by Florida Statutes.

Typically, a health care professional must be licensed in Florida or registered with the applicable Florida licensing board (e.g., the Board of Medicine or Board of Osteopathic Medicine) to provide telehealth services for a patient located in Florida. However, under the Emergency Order DOH 20-002, patients in Florida may temporarily receive telehealth services from an out-of-state physician, physician assistant, or advanced registered nurse practitioner, so long as that health care professional holds a valid, clear and unrestricted license in another U.S. State or territory and is not currently under investigation or prosecution in any disciplinary proceeding. The health care professional must also comply with Florida’s scope of practice limitations.

Under normal circumstances, qualified physicians under Florida Statute 381.986 (Florida’s medical marijuana statute) are required to conduct a physical examination of a patient while physically present in the same room as the patient in order to issue a physician certification authorizing that patient to receive marijuana and a marijuana delivery device from a medical marijuana treatment center. Under Emergency Order DOH 20-002, however, qualified physicians are temporarily permitted to substitute telehealth services for the in-person physical examination of a patient. Notably, the Emergency Order only allows the telehealth substitution for the in-person physical examination when the patient in question is an existing qualified patient with an existing certification that was issued by that qualified physician. Even during the Emergency Order’s 30-day period of applicability, a qualified physician still cannot issue a physician certification to a new patient, or to a patient who does not have an existing certification issued by the physician, unless an in-person physical examination is conducted.

Likewise, Florida-licensed physicians, osteopathic physicians, physical assistants, and advanced practice registered nurses that have designated themselves as controlled substances prescribing practitioners are temporarily permitted under the Emergency Order to issue a renewal prescription to a patient for a controlled substance listed as Schedule II, III, or IV under Chapter 893, Florida Statutes without the need to conduct a physical examination of the patient. However, the patient must be an existing patient, the renewal prescription must be for the purpose of treating chronic nonmalignant pain, and the practitioner must substitute telehealth services for the physical examination if no in-person physical examination is to occur.

It is vital for health care practitioners to recognize that, with the exception of the specific allowances explicitly set forth under Emergency Order DOH 20-002, all other minimum practice requirements, standards of care, and statutory provisions still apply. Out-of-state health care practitioners, qualified physicians under Florida’s medical marijuana statute, and controlled substances prescribing practitioners should give particular attention to the provisions of the Emergency Order as well as existing statutory law and board rules. Telehealth is an evolving field in Florida, and all practitioners must be vigilant in ensuring that their provision of telehealth services is in full compliance with the applicable state and federal laws and rules.

Lowe & Evander, P.A., understands the hard work and sacrifices it takes to become a health care professional or provider, and we aggressively defend health professionals in protecting their license, practice, career, assets and reputation. Using our experience and expertise, we navigate the obstacles our clients face, serving not only as their attorneys but also as their legal strategists, trusted advisors and protectors of their rights and interest against government investigations and lawsuits when necessary. Lowe & Evander, P.A., helps chart a course for its clients through the maze of state and federal health care laws, rules and regulations.

Our best to all of you out there taking care of patients and protecting us in these difficult and unsettling times. Stay safe!
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information and content in this article are intended to convey general informational only and may not constitute the most up-to-date legal or other information. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

Brian C. Evander, Esquire , and Michael R. Lowe, Esquire, a Florida board-certified health law attorney, are partners at Lowe & Evander, P.A. Mr. Evander and Mr. Lowe regularly represent providers, physicians and other licensed health care professionals, and facilities in a wide variety of health care law matters.

For more information regarding those health care law and such matters please visit our website or call our office at (407) 332-6353.