While the Florida Department of Health (DOH) adopted a new telemedicine rule on March 12, 2014 [Rule 64B8-9.0141 and Rule 64B15-14.0081 of the Florida Administrative Code], several bills on the same subject are under consideration by the Florida Legislature. [See, SB 1646, SB 0070, HB 751, and HB 0167]  At the same time, the Federation of State Medical Boards (FSMB) reported a new “Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine.” Whether the Florida Legislature will ultimately enact legislation consistent with the positions historically taken by the Florida Board of Medicine and the Florida Board of Osteopathic Medicine or change the law to facilitate cross border collaborations among Florida physicians and physicians licensed in their respective states remains to be seen.

The Florida Medical Boards have long taken the position that physicians who perform a professional service that contributes to the diagnosis and treatment of a patient in Florida must be licensed to practice medicine in Florida. The FSMB’s newly restated Model Policy, originally adopted in 1996, is consistent with that position in that it states: “A physician must be licensed, or under the jurisdiction, [sic] of the medical board of the state where the patient is located. The practice of medicine occurs where the patient is located at the time telemedicine technologies are used. Physicians who treat or prescribe through online services sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients receive care.”

In response to pharmaceutical sales over the Internet and other entrepreneurial e-health initiatives, the Florida Medical Boards previously established that a face-to-face encounter was required to establish an appropriate physician/patient relationship. This standard proved to be at odds with the objective of telemedicine in linking specialists with patients in different states and in different countries to make available the expertise of specialists to treat patients in remote or medically underserved areas. The FSMB has taken the position that “…while each circumstance is unique, such physician-patient relationships may be established using telemedicine technologies provided the standard of care is met.” Additionally, the insurance industry has indicated burdensome regulations should not restrict the industry from contracting for medical services. Requiring face-to-face encounters was viewed as contrary to the efficient and cost-effective delivery of health care using telemedicine technologies.

The new Rules adopted by the DOH do not directly change the definition of the practice of medicine in Florida. But they include a curious statement which might be construed to permit out of state physicians, contrary to the longstanding position of the Florida Medical Boards and the DOH, to render “consultations” with Florida licensed physicians without being licensed in Florida. “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.” [Rule 64B8-9.0141(7)(a), Florida Administrative Code]

The challenge and tension between the competing bills currently pending before the Florida Legislature is to facilitate the use of telemedicine to treat patients across state and national boundaries while ensuring that the physicians who diagnose and treat Florida residents are subject to the jurisdiction of the Florida Board of Medicine and the Florida Board of Osteopathic Medicine. Whether the Florida Legislature changes or clarifies current law will be decided within the next 45 days of the Florida Legislative Session.