House of Representatives Staff Analysis: PCS for HB 247 Telehealth Practice Standards (2021)
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- Congressional materials
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- 2021 3093 Professions Public Health Subcommittee Proposed Committee Bill Analyses Fn Pcs02
Summary
A Florida House of Representatives staff analysis of PCS for HB 247, Telehealth Practice Standards, sponsored by the Professions & Public Health Subcommittee, dated 3/22/2021. The analysis states that the bill allows practitioners to prescribe Schedule III, IV, and V controlled substances using telehealth while retaining restrictions on Schedule II substances, provides an effective date of July 1, 2021, and has no fiscal impact on state or local government. It summarizes current law on telehealth, including the definition in s. 456.47, F.S., which excludes audio-only telephone calls, e-mail messages and facsimile transmission, and the registration of out-of-state providers. It also describes the five controlled substance schedules under ch. 893, F.S. and federal requirements including the Ryan Haight Online Pharmacy Consumer Protection Act.
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Cite this document
“House of Representatives Staff Analysis: PCS for HB 247 Telehealth Practice Standards (2021).”
Original at www.flhouse.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-3093-professions-public-health-subcommittee-proposed-committee-bill-analyses-fn-pcs0247-pph/
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCS for HB 247 Telehealth Practice Standards
SPONSOR(S): Professions & Public Health Subcommittee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Professions & Public Health Grabowski McElroy
Subcommittee
SUMMARY ANALYSIS
Telehealth is the remote provision of health care services through the use of technology. Telehealth is not a
type of health care service but rather is a mechanism for delivery of health care services. Health care
professionals use telehealth as a platform to provide traditional health care services in a non-traditional
manner. These services include, among others, preventative medicine and the treatment of chronic conditions.
Current law defines telehealth broadly, but specifies that it does not include audio-only telephone calls, e-mail
messages, or facsimile transmission. Health care services may be provided via telehealth by a Florida-
licensed health care practitioner, a practitioner licensed under a multistate health care licensure compact of
which Florida is a member, or a registered out-of-state-health care provider.
Practitioners have the ability to prescribe drugs via telehealth, but state and federal law limits the ability of
practitioners to dispense controlled substances using telehealth. Controlled substances are drugs with an
increased potential for patient abuse. At present, Florida law prohibits a telehealth provider from using
telehealth services to prescribe a controlled substance except when treating:
A psychiatric disorder;
An inpatient at a hospital;
A patient receiving hospice services; and
A resident of a nursing home facility.
Federal law requires a practitioner to conduct at least one in-person medical evaluation prior to dispensing a
controlled substance to a patient via telehealth.
PCS for HB 247 allows practitioners to prescribe schedule III, IV, and V controlled substances using telehealth
services.
The bill has no fiscal impact on state or local government.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 3/22/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Telehealth
Telehealth is not a type of health care service but rather is a mechanism for delivery of health care
services. Health care professionals use telehealth as a platform to provide traditional health care
services in a non-traditional manner. These services include, among others, preventative medicine and
the treatment of chronic conditions.1
Telehealth, in its modern form,2 started in the 1960s in large part driven by the military and space
technology sectors.3 Specifically, telehealth was used to remotely monitor physiological measurements
of certain military and space program personnel. As this technology became more readily available to
the civilian market, telehealth began to be used for linking physicians with patients in remote, rural
areas. As advancements were made in telecommunication technology, the use of telehealth became
more widespread to include not only rural areas but also urban communities. Due to recent technology
advancements and general accessibility, the use of telehealth has spread rapidly and is now becoming
integrated into the ongoing operations of hospitals and healthcare systems around the country.4 In fact,
there are currently an estimated 200 telehealth networks, with 3,000 service sites in the U.S.5
Telehealth is used to address several problems in the current health care system. Inadequate access to
care is one of the primary obstacles to obtaining quality health care.6 This occurs in both rural areas
and urban communities.7 Telehealth reduces the impact of this issue by providing a mechanism to
deliver quality health care, irrespective of the location of a patient or a health care professional. Cost is
another barrier to obtaining quality health care.8 This includes the cost of travel to and from the health
care facility, as well as related loss of wages from work absences. Costs are reduced through
telehealth by decreasing the time and distance required to travel to the health care professional. Two
more issues addressed through telehealth are the reutilization of health care services and hospital
readmission. These often occur due to a lack of proper follow-up care by the patient9 or a chronic
condition.10 These issues however can potentially be avoided through the use of telehealth and
telemonitoring.11
Regulation of Telehealth in Florida
1 U.S. Department of Health and Human Services, Report to Congress: E-Health and Telemedicine, (August 2016), available at
https://aspe.hhs.gov/system/files/pdf/206751/TelemedicineE-HealthReport.pdf (last visited May 6, 2019).
2 Historically, telehealth can be traced back to the mid to late 19th century with one of the first published accounts occurring in the early
20th century when electrocardiograph data were transmitted over telephone wires. See supra note Error! Bookmark not defined. at p.
9.
3 Id.
4 American Telemedicine Association, Telehealth Basics, available at https://www.americantelemed.org/resource/why-telemedicine/
(last visited May 6, 2019).
5 Id.
6 Id.
7 Id.
8 Id.
9 Post-surgical examination subsequent to a patient’s release from a hospital is a prime example. Specifically, infection can occur
without proper follow-up and ultimately leads to a readmission to the hospital.
10 For example, diabetes is a chronic condition which can benefit by treatment through telehealth.
11 Telemonitoring is the process of using audio, video, and other telecommunications and electronic information processing
technologies to monitor the health status of a patient from a distance.
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Service Providers
In 2019, the Legislature passed and the Governor signed CS/CS/HB 23, which established a
framework for telehealth services in Florida law.12 The act broadly defines telehealth as the use of
synchronous or asynchronous telecommunications technology by a telehealth provider to provide
health care services, including, but not limited to:
Assessment, diagnosis, consultation, treatment, and monitoring of a patient;
Transfer of medical data;
Patient and professional health-related education;
Public health services; and
Health administration.
Telehealth does not include audio-only telephone calls, e-mail messages, or facsimile transmission
under Florida law.13
Health care services may be provided via telehealth by a Florida-licensed health care practitioner, a
practitioner licensed under a multistate health care licensure compact of which Florida is a member,14
or a registered out-of-state-health care provider.15
Florida-licensed telehealth providers, as well as those licensed under a multistate health care licensure
compact of which Florida is a member, must be one of the following health care practitioners.16
Behavioral Analyst Occupational therapist Clinical laboratory
Acupuncturist Radiology technician personnel
Allopathic physician Electrologist Respiratory therapist
Osteopathic physician Orthotist Physical therapist
Chiropractor Pedorthist Psychologist
Podiatrist Prosthetist Psychotherapist
Optometrist Medical physicist Dietician/Nutritionist
Nurse Emergency Medical Athletic trainer
Pharmacist Technician Clinical social worker
Dentist Paramedic Marriage and family
Dental hygienist Massage therapist therapist
Midwife Optician Mental health counselor
Speech therapist Hearing aid specialist
Out-of-state telehealth providers must register biennially with DOH or the applicable board to provide
telehealth services, within the relevant scope of practice established by Florida law and rule, to patients
in this state. To register or renew registration as an out-of-state telehealth provider, the health care
professional must:
Hold an active and unencumbered license, which is substantially similar to a license issued to a
Florida practitioner in the same profession, in a U.S. state or jurisdiction and
Not have been subject to licensure disciplinary action during the five years before submission of
the registration application;17
Not be subject to a pending licensure disciplinary investigation or action;
Not have had license revoked in any state or jurisdiction;
12 Ch. 2019-137, L.O.F.
13 S. 456.47(1), F.S.
14 Florida is a member of the Nurse Licensure Compact. See s. 464.0095, F.S.
15 Supra note 22.
16 These are professionals licensed under s. 393.17; part III, ch. 401; ch. 457; ch. 458; ch. 459; ch. 460; ch. 461; ch. 463; ch. 464; ch.
465; ch. 466; ch. 467; part I, part III, part IV, part V, part X, part XIII, and part XIV, ch. 468; ch. 478; ch. 480; part II and part III, ch. 483;
ch. 484; ch. 486; ch. 490; or ch. 491.
17 The bill requires DOH to consult the National Practitioner Data Bank to verify whether adverse information is available for the
registrant.
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Designate a registered agent in this state for the service of process;
Maintain professional liability coverage or financial responsibility, which covers services
provided to patients not located in the provider’s home state, in the same amount as required for
Florida-licensed practitioners;18 and
Prominently display a link to the DOH website, described below, which provides public
information on registered telehealth providers.19
Standards of Practice
Current law sets the standard of care for telehealth providers at the same level as the standard of care
for health care practitioners or health care providers providing in-person health care services to patients
in this state. This ensures that a patient receives the same standard of care irrespective of the modality
used by the health care professional to deliver the services. A patient receiving telehealth services may
be in any location at the time services are rendered and a telehealth provider may be in any location
when providing telehealth services to a patient.20
Practitioners may perform a patient evaluation using telehealth. A practitioner using telehealth is not
required to research a patient’s medical history or conduct a physical examination of the patient before
providing telehealth services to the patient if the telehealth provider is capable of conducting a patient
evaluation in a manner consistent with the applicable standard of care sufficient to diagnose and treat
the patient when using telehealth.
Controlled Substances
Florida Law
Chapter 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act, classifies
controlled substances into five categories, called schedules. These schedules regulate the
manufacture, distribution, preparation, and dispensing of the substances listed therein. The
distinguishing factors between the different drug schedules are the “potential for abuse”21 of the
substance and whether there is a currently accepted medical use for the substance.22
The controlled substance schedules are as follows:
Schedule I substances have a high potential for abuse and currently have no accepted medical
use in the United States, including substances such as cannabis and heroin.23
Schedule II substances have a high potential for abuse and have a currently accepted but
severely restricted medical use in the United States, including substances such as raw opium,
fentanyl, and codeine.24
Schedule III substances have a potential for abuse less than the substances contained in
Schedules I and II and have a currently accepted medical use in the United States, including
substances such as stimulants and anabolic steroids.25
Schedule IV substances have a low potential for abuse relative to substances in Schedule III
and have a currently accepted medical use in the United States, including substances such as
benzodiazepines and barbiturates.26
18 Florida law requires physicians, acupuncturists, chiropractic physicians, dentists, anesthesiologist assistants, advanced practice
registered nurses, and licensed midwives to demonstrate $100,000 per claim and an annual aggregate of $300,000 of professional
responsibility (see ss. 458.320 and 459.0085, F.S.; r. 64B1-12.001. F.A.C; r. 64B2-17.009, F.A.C.; 64B5-17.0105, F.A.C.; rr. 64B8-
31.006 and 64B15-7.006, F.A.C.; r. 64B9-4.002, F.A.C.; and r. 64B24-7.013, F.A.C.; respectively). Podiatric physicians must
demonstrate professional responsibility in the amount of $100,000 (see r. 64B18-14.0072, F.A.C.).
19 S. 456.47(4), F.S.
20 S. 456.47(2), F.S.
21 S. 893.035(3)(a), F.S., defines “potential for abuse” to mean that a substance has properties as a central nervous system stimulant or
depressant or a hallucinogen that create a substantial likelihood of its being: 1) used in amounts that create a hazard to the user’s
health or safety of the community; 2) diverted from legal channels and distributed through illegal channels; or 3) taken on the user’s
own initiative rather than on the basis of professional medical advice.
22 See s. 893.03, F.S.
23 S. 893.03(1), F.S.
24 S. 893.03(2), F.S.
25 S. 893.03(3), F.S.
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Schedule V substances have a low potential for abuse relative to the substances in Schedule IV
and have a currently accepted medical use in the United States, including substances such as
mixtures that contain small quantities of opiates, narcotics, or stimulants.27
Federal Law
The Federal Controlled Substances Act28 also classifies controlled substances into schedules based on
the potential for abuse and whether there is a currently accepted medical use for the substance. The
Drug Enforcement Administration (DEA) is required to consider the following when determining where
to schedule a substance:29
The substance’s actual or relative potential for abuse;
Scientific evidence of the substance’s pharmacological effect, if known;
The state of current scientific knowledge regarding the substance;
The substance’s history and current pattern of abuse;
The scope, duration, and significance of abuse;
What, if any, risk there is to public health;
The substance’s psychic or physiological dependence liability; and
Whether the substance is an immediate precursor of a substance already controlled.
Telehealth Prescribing of Controlled Substances
Federal law specifically prohibits prescribing controlled substances via the Internet without an in-person
evaluation:30
No controlled substance that is a prescription drug as determined under the Federal
Food, Drug, and Cosmetic Act may be delivered, distributed, or dispensed by means of
the Internet without a valid prescription.31
The in-person medical evaluation requires that the patient be in the physical presence of the provider
without regard to the presence or conduct of other professionals.32 However, the Ryan Haight Online
Pharmacy Consumer Protection Act,33 signed into law in October 2008, created a pathway for
telehealth practitioners to dispense controlled substances via telehealth. The practitioner is still subject
to the requirement that all controlled substance prescriptions be issued for a legitimate purpose by a
practitioner acting in the usual course of professional practice. But, once an in-person evaluation of the
patient has occurred, the practitioner may provide future prescriptions for controlled substances for that
patient using telehealth services.34
Florida law currently prohibits a telehealth provider from using telehealth services to prescribe a
controlled substance except when treating:
A psychiatric disorder;
An inpatient at a hospital licensed under ch. 395, F.S.;
A patient receiving hospice services as defined under s. 400.601, F.S.;
A resident of a nursing home facility as defined under s. 400.021(12), F.S.
Effect of Proposed Changes
26 S. 893.03(4), F.S.
27 S. 893.03(5), F.S.
28 21 U.S.C. § 812.
29 21 U.S.C. § 811(c).
30 21 CFR §829
31 A valid prescription is defined as one issued by a practitioner who has conducted at least one in-person medical evaluation of the
patient.
32 21 CFR § 829(e)(2).
33 Ryan Haight Online Consumer Protection Act of 2008, Public Law 110-425 (H.R. 6353).
34 Supra note 40.
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DATE: 3/22/2021
PCS for 247 allows practitioners to prescribe Schedule III, IV, and V controlled substances using
telehealth services and retains current law restrictions on prescribing Schedule II controlled substances
through telehealth.
The bill provides an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Amends s. 456.47, F.S.; relating to use of telehealth to provide services.
Section 2: Provides an effective date of July 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
DOH has sufficient rule-making authority to implement the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
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DATE: 3/22/2021
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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