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Telemental Health-Legal, Licensing Boards, and Insurance Reimbursement Back to Course Index

(1.)  Required equipment and technology:

A stable broadband internet connection through a computer with a 

web camera and microphone, which works through a HIPAA-compliant 

telehealth software/platform.

(2.)  HIPAA-compliant telehealth software/platform:

Telehealth software/platform vendors are required to have a Business 

Associate Agreement (BAA). For HIPAA compliance the BAA must 

define methods used by vendor to ensure the security of the data 

and how they maintain and audit for security. 

 

Leesa, here’s a website with some info re: the main 2 issues:

 

 

NEXT course:

 

Legal Aspects of Telemental Health

  • Explain how to determine if you can legally practice telemental health
  • Explain how to determine if you can provide clinical services to a client who is not located in the jurisdiction in which you have obtained a professional license
  • Describe how to handle a situation in which a client is going to be outside the jurisdiction in which you are authorized to practice while requesting your clinical services

 

Explain how to determine if you can legally practice telemental health

Explain how to determine if you can provide clinical services to a client who is not located in the jurisdiction in which you have obtained a professional license

Describe how to handle a situation in which a client is going to be outside the jurisdiction in which you are authorized to practice while requesting your clinical services

 

HIPAA Compliance for Mental Health Professionals

 

The use of technology creates unique vulnerabilities in securing clients’ healthcare information. Often graduate programs in behavioral health do not extensively cover HIPAA compliance. Understanding how to become HIPAA compliant not only protects you as a clinician but most importantly helps you protect the privacy of your clients’ information. This course covers the rules in HIPAA law and explains the process of becoming HIPAA compliant. The uniqueness of behavioral health services related to confidentiality is also covered in this course, along with how you can implement the guidelines and requirements of HIPAA law.

 

HIPAA Guidelines on Telemedicine

Communicating ePHI at Distance

The HIPAA guidelines on telemedicine affect any medical professional or healthcare organization that provides a remote service to patients in their homes or in community centers. Many people mistakenly believe that communicating ePHI at distance is acceptable when the communication is directly between physician and patient – and this would be what the HIPAA Privacy Rule would imply.

However, the channel of communication that is used for communicating ePHI at distance is also important if medical professionals and healthcare organizations want to comply with the HIPAA guidelines on telemedicine. This element of the HIPAA guidelines on telemedicine is contained within the HIPAA Security Rule and stipulates:

  • Only authorized users should have access to ePHI.
  • A system of secure communication should be implemented to protect the integrity of ePHI.
  • A system of monitoring communications containing ePHI should be implemented to prevent accidental or malicious breaches.

Licensing Boards

Reimbursement

Florida

What is Telehealth? The use of synchronous (real-time information sharing) or asynchronous (relay of information with lag time) telecommunications technology by a telehealth provider to provide health care services, including, but not limited to, the 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. If I am licensed in Florida, am I required to register to provide telehealth services? No. Individuals who are fully licensed in Florida can provide telehealth services to patients located in Florida. Telehealth provider registration applies to health care practitioners who are licensed in another state, the District of Columbia, or a possession or territory of the United States and complete the registration application with the department. If I am licensed in Florida, can I provide telehealth services to a client in another state? Not always. If a Florida licensee plans to provide telehealth services to a client outside of Florida, they must review the laws and rules of the jurisdiction where the patient is located. Not all states permit telehealth services… even under emergency circumstances. Telehealth providers must practice in a manner consistent with his or her scope of practice AND the prevailing professional standard of practice for a health care professional who provides in-person health care services to patients in Florida. Intake and Screening A telehealth provider may use telehealth to perform a patient evaluation and should assess whether the client is suitable for telehealth services including, but not limited to, consideration of the client’s psychosocial situation. If not deemed appropriate for telehealth services at any time, the clients should be referred to face to face treatment. Written informed consent is required for both in-person and telehealth based services and should be documented in the client’s records. Limitations and parameters of telehealth services should be included. The provider should take reasonable steps to verify the identity, physical address location of the client and others present in the location at each session. Visual review of an identification card and confirmation that the session is not being conducted in a public place are recommended. Visual review of identification also facilitates confirmation of the client’s age and status as a minor for legal age of consent considerations. It is recommended that the provider confirm the client’s ability to use basic technology and provide information on how to handle the situation of a technology failure occurs during the session. Recommended Disclosure Considerations Provide counseling credentials, license state, and license number. Include proper titles when identifying with a specific profession. Out of state providers who have a website must also include a prominently displayed hyperlink to the Florida Department of Health website where registrant information is published. Technology & Confidentiality Telehealth providers must use the same standard of maintaining patient medical records as used for in-person services. Medical records must be confidentially maintained, as required in ss. 395.3025(4), F.S. Service providers are required to understand and apply Heath Insurance Portability and Accountability Act (HIPAA) compliance standards in both in-person as well as telehealth encounters. Providers should also familiarize themselves with Health Information Technology for Economic and Clinical Health (HITECH) Act. Providers should stay informed of technology changes and updates to utilize the industry’s best practices of ensuring confidentiality. Practice Considerations Providers are required to perform within the scope of practice where the provider is located AND where the client is located. For disciplinary purposes, any act that constitutes the delivery of health care services is deemed to occur at the place where the patient is located at the time the act is performed or in the patient’s county of residence. It is recommended that licensees and registrants provide telehealth services only after engaging in appropriate education, study, training, consultation or supervision for professionals who are competent in the use of technology- based treatment. As with all mental health services, treatment provided by telehealth must be conducted in a sensitive manner that is responsive to cultural and gender differences and special needs. Mental health services must be provided without regard to race, religion, national origin, gender, physical disability, or other characteristics. Providers should always be aware of local services available where the patient is located in the event of a crisis situation. Relevant resources, including emergency services, should be documented in the client’s records. At a minimum, contact information for local first responders is recommended. When providing services at a distance, use of the 911 system is unavailable. Documentation A telehealth provider shall document in the patient’s medical record the health care services rendered using telehealth according to the same standard as used for in-person services. Medical records, including video, audio, electronic, or other records generated as a result of providing such services, are confidential pursuant to section 395.3025(4) and setion 456.057, Florida Statutes.

 

Emergency Rule 64B4ER20-20, F.A.C. and Telehealth Guidelines

Mental Health by Telehealth

Posted in Latest News on March 20, 2020.

 

For the purposes of preparing for, responding to, and mitigating any effect of COVID-19, on March 19, 2020, the Board held an emergency meeting to discuss emergency rule 64B4ER20-20, Florida Administrative Codes. This rule allows registered interns to provide telehealth services to existing clients during the next 90 days if they establish and adhere to the following:

  1. The registered intern has an established qualified supervisor and maintains the same qualified supervisor for the duration of the application of the rule;
  2. The registered intern has a written telehealth protocol and safety plan in place with their current qualified supervisor which includes the provision that the qualified supervisor must be readily available during the electronic therapy session: and
  3. The registered intern and the client have an existing therapeutic relationship established prior to the effective date of this rule.

The emergency rule also allows qualified supervisors to utilize face-to-face electronic methods (not telephone only communication) to conduct all supervision sessions for internship hours.

For the filed emergency rule language, please click here.

For further information regarding telehealth, please click here.

 

Title XXXII
REGULATION OF PROFESSIONS AND OCCUPATIONS
Chapter 456
HEALTH PROFESSIONS AND OCCUPATIONS: GENERAL PROVISIONS
“456.47 Use of telehealth to provide services.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Telehealth” means 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. The term does not include audio-only telephone calls, e-mail messages, or facsimile transmissions.
(b) “Telehealth provider” means any individual who provides health care and related services using telehealth and who is licensed or certified under s. 393.17; part III of chapter 401; chapter 457; chapter 458; chapter 459; chapter 460; chapter 461; chapter 463; chapter 464; chapter 465; chapter 466; chapter 467; part I, part III, part IV, part V, part X, part XIII, or part XIV of chapter 468; chapter 478; chapter 480; part II or part III of chapter 483; chapter 484; chapter 486; chapter 490; or chapter 491; who is licensed under a multistate health care licensure compact of which Florida is a member state; or who is registered under and complies with subsection (4).
(2) PRACTICE STANDARDS.—
(a) A telehealth provider has the duty to practice in a manner consistent with his or her scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to patients in this state.
(b) A telehealth provider may use telehealth to perform a patient evaluation. If a telehealth provider conducts a patient evaluation sufficient to diagnose and treat the patient, the telehealth provider is not required to research a patient’s medical history or conduct a physical examination of the patient before using telehealth to provide health care services to the patient.
(c) A telehealth provider may not use telehealth to prescribe a controlled substance unless the controlled substance is prescribed for the following:
1. The treatment of a psychiatric disorder;
2. Inpatient treatment at a hospital licensed under chapter 395;
3. The treatment of a patient receiving hospice services as defined in s. 400.601; or
4. The treatment of a resident of a nursing home facility as defined in s. 400.021.
(d) A telehealth provider and a patient may be in separate locations when telehealth is used to provide health care services to a patient.
(e) A nonphysician telehealth provider using telehealth and acting within his or her relevant scope of practice, as established by Florida law or rule, is not in violation of s. 458.327(1)(a) or s. 459.013(1)(a).
(3) RECORDS.—A telehealth provider shall document in the patient’s medical record the health care services rendered using telehealth according to the same standard as used for in-person services. Medical records, including video, audio, electronic, or other records generated as a result of providing such services, are confidential pursuant to ss. 395.3025(4) and 456.057.
(4) REGISTRATION OF OUT-OF-STATE TELEHEALTH PROVIDERS.—
(a) A health care professional not licensed in this state may provide health care services to a patient located in this state using telehealth if the health care professional registers with the applicable board, or the department if there is no board, and provides health care services within the applicable scope of practice established by Florida law or rule.
(b) The board, or the department if there is no board, shall register a health care professional not licensed in this state as a telehealth provider if the health care professional:
1. Completes an application in the format prescribed by the department;
2. Is licensed with an active, unencumbered license that is issued by another state, the District of Columbia, or a possession or territory of the United States and that is substantially similar to a license issued to a Florida-licensed provider specified in paragraph (1)(b);
3. Has not been the subject of disciplinary action relating to his or her license during the 5-year period immediately prior to the submission of the application;
4. Designates a duly appointed registered agent for service of process in this state on a form prescribed by the department; and
5. Demonstrates to the board, or the department if there is no board, that he or she is in compliance with paragraph (e).
The department shall use the National Practitioner Data Bank to verify the information submitted under this paragraph, as applicable.

(c) The website of a telehealth provider registered under paragraph (b) must prominently display a hyperlink to the department’s website containing information required under paragraph (h).
(d) A health care professional may not register under this subsection if his or her license to provide health care services is subject to a pending disciplinary investigation or action, or has been revoked in any state or jurisdiction. A health care professional registered under this subsection must notify the appropriate board, or the department if there is no board, of restrictions placed on his or her license to practice, or any disciplinary action taken or pending against him or her, in any state or jurisdiction. The notification must be provided within 5 business days after the restriction is placed or disciplinary action is initiated or taken.
(e) A provider registered under this subsection shall maintain professional liability coverage or financial responsibility, that includes coverage or financial responsibility for telehealth services provided to patients not located in the provider’s home state, in an amount equal to or greater than the requirements for a licensed practitioner under s. 456.048, s. 458.320, or s. 459.0085, as applicable.
(f) A health care professional registered under this subsection may not open an office in this state and may not provide in-person health care services to patients located in this state.
(g) A pharmacist registered under this subsection may only use a pharmacy permitted under chapter 465, a nonresident pharmacy registered under s. 465.0156, or a nonresident pharmacy or outsourcing facility holding an active permit pursuant to s. 465.0158 to dispense medicinal drugs to patients located in this state.
(h) The department shall publish on its website a list of all registrants and include, to the extent applicable, each registrant’s:
1. Name.
2. Health care occupation.
3. Completed health care training and education, including completion dates and any certificates or degrees obtained.
4. Out-of-state health care license with the license number.
5. Florida telehealth provider registration number.
6. Specialty.
7. Board certification.
8. Five-year disciplinary history, including sanctions and board actions.
9. Medical malpractice insurance provider and policy limits, including whether the policy covers claims that arise in this state.
10. The name and address of the registered agent designated for service of process in this state.
(i) The board, or the department if there is no board, may take disciplinary action against an out-of-state telehealth provider registered under this subsection if the registrant:
1. Fails to notify the applicable board, or the department if there is no board, of any adverse actions taken against his or her license as required under paragraph (d).
2. Has restrictions placed on or disciplinary action taken against his or her license in any state or jurisdiction.
3. Violates any of the requirements of this section.
4. Commits any act that constitutes grounds for disciplinary action under s. 456.072(1) or the applicable practice act for Florida-licensed providers.
Disciplinary action taken by a board, or the department if there is no board, under this paragraph may include suspension or revocation of the provider’s registration or the issuance of a reprimand or letter of concern. A suspension may be accompanied by a corrective action plan as determined by the board, or the department if there is no board, the completion of which may lead to the suspended registration being reinstated according to rules adopted by the board, or the department if there is no board.

(5) VENUE.—For the purposes of this section, any act that constitutes the delivery of health care services is deemed to occur at the place where the patient is located at the time the act is performed or in the patient’s county of residence. Venue for a civil or administrative action initiated by the department, the appropriate board, or a patient who receives telehealth services from an out-of-state telehealth provider may be located in the patient’s county of residence or in Leon County.
(6) EXEMPTIONS.—A health care professional who is not licensed to provide health care services in this state but who holds an active license to provide health care services in another state or jurisdiction, and who provides health care services using telehealth to a patient located in this state, is not subject to the registration requirement under this section if the services are provided:
(a) In response to an emergency medical condition as defined in s. 395.002; or
(b) In consultation with a health care professional licensed in this state who has ultimate authority over the diagnosis and care of the patient.
(7) RULEMAKING.—The applicable board, or the department if there is no board, may adopt rules to administer this section.
History.—s. 1, ch. 2019-137.”  http://www.leg.state.fl.us/statutes/

 

 

On April 29, 2019, the Florida State Legislature passed HB 23, a law providing additional guidelines on the use of telehealth in the Sunshine State. The bill is now on its way to Governor DeSantis’ desk where he is expected to sign it into law. The law cements the validity of telehealth services in Florida, establishes new telehealth practice standards, creates a registration process for out-of-state health care professionals to use telehealth to deliver health care services to Florida patients, and introduces less-than-ideal commercial reimbursement provisions.

Passage of the bill is due to the outstanding efforts of the Florida telehealth community, including the Florida Telehealth Advisory Council and its dedicated members. The 13-member Council held public meetings throughout 2017, conducted a research survey of Florida health plans, facilities, and providers, and ultimately completed a comprehensive report with recommendations to the Legislature for a telehealth bill.

The bill creates a new section in the Florida statutes (Section 456.47, F.S.) which takes effect July 1, 2019. The essential provisions are summarized and explained below:

Key Definitions

  • Telehealth is defined 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 fax transmissions.
  • Telehealth Provider is broadly defined as an individual who provides a health care service using telehealth, which includes, but is not limited to, a licensed physician, podiatrist, optometrist, nurse, nurse practitioner, pharmacist, dentist, chiropractor, acupuncturist, midwife, speech language pathologist, audiologist, occupational therapist, radiological personnel, respiratory therapist, dietician, athletic trainer, orthotist, pedorthist, prosthetist, electrologist, massage therapist, medical physicist, optician, hearing aid specialist, physical therapist, psychologist, clinical social worker, mental health counselor, psychotherapist, marriage and family therapist, behavior analyst, basic or advanced life support service, or air ambulance service. Telehealth provider also includes an individual licensed under a multi-state health care licensure compact of which Florida is a member state or an individual who obtains an out-of-state telehealth registration (discussed in more detail below).

Practice Standards

  • Standard of Care. The new law makes it clear that a telehealth provider has the duty to practice in a manner consistent with his or her scope of practice and the prevailing professional standard of practice for a health care professional who provides in-person health care services to Florida patients.
  • Telehealth Exams. A telehealth provider may use telehealth to perform a patient evaluation. If a telehealth provider conducts a patient evaluation sufficient to diagnose and treat the patient, the telehealth provider is not required to research a patient’s medical history or conduct a physical examination before using telehealth to provide health care services.
  • Telemedicine Prescribing. A telehealth provider may only use telehealth to prescribe a controlled substance if the controlled substance is prescribed for: (1) the treatment of a psychiatric disorder; (2) inpatient treatment at a hospital; (3) the treatment of a patient receiving hospice services; or (4) the treatment of a nursing home resident. This change expands telemedicine controlled substance prescribing in Florida to hospice and nursing home patients. Prior to this law, controlled substances could only be prescribed via telemedicine for the treatment of psychiatric disorders or for patients in a hospital. The Florida Board of Medicine may need to update its regulations to reflect this expansion. Telemedicine prescribers should continue to be mindful of prescribing requirements under federal laws, as remote prescribing of controlled substances is governed by the Ryan Haight Act.
  • Patient Medical Records. Telehealth providers must maintain a complete record of the patient’s care according to the same standard as used for in-person services and comply with applicable Florida law for confidentiality and disclosure of the patient’s medical record.

Out of State Registration and Licensure Exceptions

  • Out-of-State Registration. The new law authorizes out-of-state health care professionals, without a Florida license, to use telehealth to deliver health care services to Florida patients if they register with the Department of Health or the applicable board, meet certain eligibility requirements, and pay a fee. To obtain an out-of-state registration the health care professional must:
    • Complete an application;
    • Maintain an active, unencumbered license issued by another state that is substantially similar to the corresponding Florida license;
    • Not have been the subject of disciplinary action relating to his or her license for the previous 5 years;
    • Designate a registered agent for service of process in Florida;
    • Maintain professional liability coverage, that includes coverage for telehealth services to patients in Florida, in amounts equal to or greater than what are required for a Florida-licensed practitioner;
    • Not open an office in Florida or provide in-person health care services to patients located in Florida.
    • Only use a Florida-licensed pharmacy or a registered nonresident pharmacy or outsourcing facility to dispense medicinal drugs to patients located in Florida. (Pharmacists only)
  • Licensure Exception. A health care professional who is not licensed to provide health care services in Florida, but who holds an active license to provide health care services in another state, may provide health care services using telehealth to a patient located in Florida without a Florida license and without an out-of-state registration, if the services are provided: (1) in response to an emergency medical condition; or (2) in consultation with a Florida-licensed health care professional who has ultimate authority over the diagnosis and care of the patient.

Insurance Coverage of Telehealth Services

While the bill is a great step forward for providers of telehealth services on several fronts, it does not actually require health plans to cover services delivered via telehealth.

With an effective date of January 1, 2020, the bill creates a new Section 627.42396, F.S., which reads:

“A contract between a health insurer issuing major medical comprehensive coverage through an individual or group policy and a telehealth provider, as defined in s. 456.47, must be voluntary between the insurer and the provider and must establish mutually acceptable payment rates or payment methodologies for services provided through telehealth. Any contract provision that distinguishes between payment rates or payment methodologies for services provided through telehealth and the same services provided without the use of telehealth must be initialed by the telehealth provider.”

A new subsection (45) also was added to Section 641.31, F.S., which mirrors this language for health maintenance organizations.

The language merely clarifies that contracts signed by insurers with telehealth providers be “voluntary” with mutually acceptable rates or payment methodologies and requires the telehealth provider to initial any contract provision that would cause telehealth reimbursement to be different than reimbursement for the same services provided in person. This new reimbursement statute resembles the telehealth commercial insurance coverage law in Michigan. Unfortunately, for now, health plan reimbursement continues to be a stumbling block for telehealth providers and patients as Florida remains among the minority of states without a meaningful telehealth insurance coverage law.

What’s Next?

Florida already has telehealth regulations for allopaths (64B8-9.0141) and osteopaths (64B15-14.0081) and many other professional boards have issued a position statement on the practice of telehealth. The new law may require the Board of Medicine to rewrite its current regulation to the extent it conflicts with the controlling provisions of the new statute.

Providers looking to enter the Florida market must understand and navigate these interesting laws on telehealth licensing, practices standards, controlled substances, and reimbursement. We will continue to monitor Florida for any rule changes that affect or improve telehealth opportunities in the state.

For more information on telemedicine, telehealth, virtual care, remote patient monitoring, digital health, and other health innovations, including the team, publications, and representative experience, visit Foley’s Telemedicine & Digital Health Industry Team.

 

There is no provisional license to practice telehealth. Telehealth is just a means by which clinicians offer services they are already authorized to provide. You can, however, develop the competencies and skills needed to provide telemental health services effectively and ethically through our THTC program: https://telementalhealthtraining.com/thtc-certificate-courses/product/telemental-health-training-certificate-thtc-online-self-study

You should check with the board governing your licensure process to see if they will allow interns to offer any services via telehealth.