Two recent analyses of the telehealth market predict substantial growth in the foreseeable future.  RNCOS Business Consultancy Services is predicting a worldwide annual growth rate of 18.5 percent, while IHS is predicting that the telehealth market in the United States will grow from $240 million today to $1.9 billion in 2018, a 56 percent rate of growth.  There are two factors that appear to be fostering this growth:  (i) The development of new reimbursement mechanisms; and (ii) legislative initiatives that are removing some of the legal barriers that have hampered the growth of telemedicine.

As both the Federal health care programs (such as Medicare and Medicaid) and private insurers adopt payment mechanisms that require healthcare providers to render care more effectively and efficiently, telehealth is being viewed as a way to achieve both goals.  Telehealth enables patients who are in remote areas or who do not have ready access to specialists obtain services.  This same technology also provides a means for physicians and nurse practitioners to monitor the progress of patients with chronic conditions or who have difficulty in traveling, both of which are going to become increasingly prevalent as our population ages.

At the same time, there are legislative efforts to ensure that healthcare providers who adopt this new technology are appropriately paid for their services.  The TELE-MED Act, HR 3077, would permit the Medicare program to cover the telehealth services rendered by a healthcare provider in one state to beneficiaries in another state.  Another federal proposal, the Telehealth Modernization Act, HR 3750, would authorize the adoption of federal standards for telehealth.  The coverage of telehealth services also is getting attention in the Florida Legislature.  During its last session a bill was introduced that would have required payers to cover services rendered through telehealth, if those services were covered when rendered in person.  The expectation is that the Legislature will consider a similar proposal during its 2014 session.

Against this backdrop of legislative activity, Florida already regulates the practice of telemedicine.  Section 64B8-9.014(1), F.A.C., (the "Rule"), states that "[p]rescribing 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."  The Rule establishes three prerequisites for a physician to use "electronic or other means" to provide treatment (excluding an "emergency situation"):

  1. A "documented patient evaluation, including history and physical examination...";
  2. A discussion with the patient "regarding treatment options and the risks …"; and
  3. A contemporaneously maintained medical record.

One of the aspects of the Rule that has caused confusion is the requirement for a "physical examination" in order to prescribe medications or other treatments using telemedicine.  Specifically, must there first be a face-to-face encounter between the prescribing physician and the patient?  A recent Declaratory Statement issued by the Florida Board of Medicine (In re: Petition for Declaratory Statement  of Jose Garcia, M.D., Final Order No. DOH-14-0226-DS-MQA (2/17/2014)), provides some guidance on this question.

In Garcia, the Board reviewed the provisions of Section 64B8-9.014 in light of Dr. Garcia's proposal to use telemedicine to treat patients located in rural areas or during hours when his offices were not open.  The Board observed that the Rule "does not set forth a blanket prohibition on the use of telemedicine technology to provide medical care to patients."   Accordingly, based on the information in his Petition, the Board concluded that Dr. Garcia's "proposed practice plan … does not reveal any practices that would violate" the Rule. 

Although a cursory reading of Garcia may lead some to conclude that the answer to the question raised above is "no” because an in-person examination is not a prerequisite to treating a patient via telemedicine.  However, a closer reading reveals that an incomplete understanding of this decision exists because the Board chose not to include a statement of the facts it was asked to consider in this Declaratory Statement.  Dr. Garcia's "proposed plan", as described in his Petition, includes the following:  "Telemedicine would only be available to existing clinic patients who have been seen personally by a clinic medical provider prior to the telemedicine visit."  Thus, a prudent reading suggests that the Board views a prior face-to-face encounter as a prerequisite to treating a patient by means of telemedicine.  Until the question is settled definitively through legislation, regulation, judicial decision or another Declaratory Statement, a prudent reading of the Rule includes an understanding that the phrase "documented patient evaluation, including history and physical examination" means a prior face-to-face encounter with the patient.

Telehealth is emerging as an integral part of the healthcare delivery system.  Physicians, hospitals and Accountable Care Organizations (ACOs) need to evaluate telehealth and determine how to integrate this technology into their practices.  At the same time, the federal government and states, such as Florida, need to review and revise their schemes for regulating this method of delivering healthcare services to better reflect the technological and reimbursement environments within which telemedicine can be safely practiced.