New telehealth, plastic surgery, physician self-referral laws take effect July 1

A degree of racial disparity in health care still exists in South Florida

Beginning Saturday, physicians can use their telephones to provide telehealth, a new law meant to increase safety at plastic surgery centers goes into effect, and Florida’s law banning physicians from self-referring patients to entities in which they have a financial interest will align with anti-kickback laws.

The Legislature passed 348 general and local bills this Session, scores of which were health care-related. Many of them take effect July 1.

Some of them, such as the “Prescribe Freedom” bill (SB 1580), were pushed by Gov. Ron DeSantis, who is now running for President. The new law allows physicians and health insurance companies to turn away patients because of their “conscience-based objections.”

Others, though, were sought by health care special interest groups, such as physicians, other health care providers or business associations that were seeking changes.

Organized medicine has pushed for changes to Florida’s telehealth law since the 2021 Session and the experiences in the wake of the COVID-19 pandemic.

While their efforts fell short in the 2021 Session, lawmakers responded the following year, passing legislation allowing physicians to use telehealth to prescribe certain controlled substances.

The Legislature didn’t authorize telephones to be used for telehealth in the 2022 Session, though. That happened in the 2023 Session with the passage of HB 267, which was praised by Americans for Prosperity.

The new law makes clear that telephones are an acceptable platform for telehealth services. The 2023 legislation, though, didn’t modify existing law to require insurers to reimburse physicians for providing telehealth.

Lawmakers also passed HB 387, which allows physicians to use telehealth to renew medical marijuana orders for patients already certified to use the drug. Medical marijuana lobbyist Ron Watson has supported the telehealth platform for medical marijuana since 2019, when the state passed its initial telehealth law.

The DeSantis administration advanced numerous regulatory changes — many contained in HB 1471 — that were sought by the Department of Health (DOH) and the Agency for Health Care Administration (AHCA).

AHCA is empowered to obtain an ex parte injunction to temporarily shut down licensed health care facilities that continue to operate after being told by the agency to cease and desist. Ex parte injunctions can be issued without the court hearing from the other side. AHCA regulates a variety of different facilities such as nursing homes, assisted living facilities, hospitals, abortion clinics and ambulatory surgical centers.

New plastic surgery centers, for instance, will have to be inspected by DOH officials before being allowed to register and legally operate.

As a response to a spate of deaths in South Florida following plastic surgery procedures, including Brazilian butt lifts, the Legislature in 2019 for the first time required the centers to designate a medical director and register with the state. But the registration wasn’t predicated on an onsite inspection, and the law gave DOH officials up to one year to inspect the facilities.

HB 1471 requires DOH medical quality assurance staff to inspect the plastic surgery offices and centers before registering them.

“What we are alerting people is, if you are close, get your registration (paperwork) into the state before June 30,” Jacksonville health care lawyer Christopher Nuland said. “If you haven’t gotten it in by then, it could be a month before you open because they will have to get the inspectors out there and we’ll see how that works.”

Medical and osteopathic physicians who perform Brazilian butt lifts must also adhere to new standard of care requirements for the procedure contained in HB 1471.

DeSantis also made lowering prescription drug costs a top priority during the 2023 Session. For the first time, he threw his hat in the legislative tussle over proper regulation of pharmacy benefit managers, or PBMs, championing SB 1550, which also takes effect Saturday.

While these laws are slated to take effect Saturday, other health care bills passed during the 2023 Session either won’t take effect until later this year or have already gone into effect.

For instance, legislation (HB 825) that ups the criminal penalties for knowingly committing assault or battery upon hospital workers doesn’t take effect until Oct. 1.

Supported by hospitals from around the state, the bill increases the charge for battery on an employee from a misdemeanor of the first degree to a felony of the third degree. A charge for aggravated assault has been enhanced from a felony of the third degree to a felony of the second degree. A charge for aggravated battery has been enhanced from a felony of the second degree to a felony of the first degree.

And a controversial bill (SB 254) banning children from receiving gender affirming care and criminalizing the physicians who provide them the care, took effect May 18 when the Governor signed it (though a federal court has stayed enforcement of the law for three transgender children who challenged it).

University of Florida Levin College of Law Professor Mark Fenster said the Legislature by design enjoys free rein when it comes to effective dates.

“Well, the Legislature has the authority to do whatever the heck they want and that’s so the effective date could be chosen at random. But there would be reasons for choosing a particular effective date. And oftentimes, it would have to do with any number of different factors, including its relationship to existing bills. It could be influenced by budgetary concerns and if there are appropriations that are necessary for it,” said Fenster, whose areas of specialty include government law and the Legislature.

“It could be that the groups that are lobbying, would prefer some sort of delay before the regulatory act is to take effect so that they can be sure to have some time in order to comply. It’s just one of the many things that a Legislature can use in trying to craft a bill that it believes will be most effective in achieving whatever goal the Legislature has, good or bad.”

While the bill didn’t make headlines or garner much media attention, Nuland said SB 768 is a game-changer for Florida physicians, as well as lawyers, like himself, who work to ensure physicians are following state and federal rules and regulations.

SB 768 aligns Florida’s long-standing physician self-referral laws with federal Stark laws. Specifically, the bill removes from Florida law a requirement that there be “direct supervision” when physicians self-refer their patient for certain designated health services provided by, or in entities they have a financial interest in.

Direct supervision means being overseen by a physician who is present in the office suite and immediately available to provide assistance and direction throughout the time services are being performed, with some exceptions — more stringent than federal Stark law.

The bill removes the direct supervision requirement and the requirement that the physician be present in the office suite, allowing general supervision of such services from locations outside of the office where the services are provided. 

“This is one of those bills that got in the weeds for health care lawyers, but it means that for things like X-rays, the physician doesn’t always need to be in the office when an X-ray is performed,” Nuland said, adding that it also clarifies the law for lawyers who don’t have to worry about advising their clients on conflicting regulations.