The Challenges of Treating “Snowbird Patients”

By: Rafi Ejaz, Esq., MLMIC Legal Department

Who Are “Snowbirds?”

While there is no accepted definition of “snowbird patients,” the term “snowbird” denotes those individuals who travel to warmer climates to escape harsh winters. A common pattern would be those living in northeastern states wintering in southern or southwestern states such as Florida and Arizona. The number of such people is significant, with one estimate noting that Florida alone has one million residents who only spend part of the year there.

West Florida Healthcare, for instance, experiences around a 10% increase in patient traffic when it’s the winter season up north.² In response to the increase in patient traffic, Florida has had to increase spending on healthcare. The Perdido Bay Area, for example, has developed a freestanding emergency room at the cost of $10 million.³

Many snowbirds need medical treatment while they are down south for the winter and will reach out to their providers in their home state for treatment or advice. With the advent of modern-day technology, e.g., webcams and smartphones, providing this service has undoubtedly become easier.

The Legal Landscape — Licensing and Prescribing

Snowbird patients receiving treatment from their home state while they are down south poses legal challenges. One such issue is whether the provider in the home state is legally permitted to provide care to the snowbird patient while the patient is in another state. Generally speaking, doctors need to be licensed in the state where their patient is located at the time of the telehealth appointment.

Florida, being a hub for snowbirds, has a unique legal arrangement in place, having enacted a law pertaining to out-of-state healthcare professionals, i.e., medical doctors.⁴ To begin with, under the pertinent Florida statute, out-of-state doctors who are not licensed in Florida can use telehealth to deliver healthcare services to patients located in Florida if they register with the Florida Department of Health, appoint a registered agent and meet certain other eligibility requirements.⁵ Notably, this law only allows out-of-state doctors to use telehealth to provide healthcare rather than in-person appointments for offering their medical services.

Telehealth is defined by Florida statutes law, Section 456.47(4)(e), as the use of synchronous (real-time information sharing) or asynchronous (information sharing with a lag time) telecommunications technology by a telehealth provider to provide healthcare services, including, but not limited to:

• Assessment, diagnosis, consultation, treatment and monitoring of a patient

• Transfer of medical/dental data

• Patient and professional health-related education

• Public health services

• Health administration

Under this law, telehealth, however, does not include audio-only telephone calls, email messages or fax transmissions, which means that out-of-state doctors would not be allowed to provide care through those means. Apart from the aforementioned, there are other arrangements in place for doctors in one state to practice in another jurisdiction, namely, the Interstate Medical Licensure Compact, which essentially creates a pathway for physicians who hold a medical license in one state to obtain a license in another.⁶ However, to date, New York State has not joined the Interstate Medical Licensure Compact.⁷

There are exceptions in place that allow medical providers licensed in one state to provide their services in another. One such exception is a New York State law pertaining to speech-language pathologists that allows a speech-language pathologist from another state to perform speech-language pathology or audiology services in New York as long as such services are performed for no more than 30 days in any calendar year and provided that such services are performed in conjunction with and/or under the supervision of a speech-language pathologist or audiologist  licensed under Article 159 of the New York State Education Law.⁸

The regulatory landscape regarding telehealth is far more complicated when we look at the nationwide picture. In the wake of COVID-19, every state in the Union issued a waiver and/or developed expedited telehealth licenses, allowing residents to meet virtually with doctors.⁹ This proved to be revolutionary in a way, as by April 2020, over a third of all doctors’ appointments in the country were conducted via telehealth.¹⁰ However, as fast as that change was ushered in, it was quickly backtracked on. As early as 2021, legislators and medical boards began ending waivers for telehealth access, and many states ended up banning or severely restricting telehealth appointments with doctors licensed out of state.

Some of these states, such as Alaska, do have certain exceptions in place, such as allowing the use of telehealth to see an out-of-state doctor if you have a life-threatening condition.¹¹ Similarly, the state of Kentucky has an exception in place that allows telehealth appointments if the patient involved is a sports entity that is visiting Kentucky for a sporting event. Some states, such as New Jersey, take telehealth very seriously. Notably, in New Jersey, doctors can be subjected to criminal charges and even jail time for practicing telemedicine with an out-of-state license. Many other states fall on the opposite end of the spectrum and have a wide range of regulatory measures in place that make the use of telehealth much easier.¹²

Another important legal aspect worth discussing is that of online prescriptions, specifically those of controlled substances. Looking nationwide, we see a wide array of variations as to how different states approach such online prescriptions from a legal standpoint.¹³ Some states require a patient-physician relationship to be established, even if via telehealth, before such prescriptions can be made online, whereas other states require an in-person evaluation within a specific time frame for online prescribing to take place. On the other hand, some states do not allow any online prescribing of controlled substances. It might also be worth noting that certain states, such as Arkansas and Indiana, have specific restrictions for online prescribing of abortion-inducing medications.¹⁴ At the federal level, there is the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 and the Drug Enforcement Administration’s regulations, under which a practitioner may use telehealth to prescribe a controlled substance to a patient only after having an in-person evaluation.¹⁵

Apart from the purely legal consideration, to meet the needs of snowbird patients, hospitals are entering into partnerships with each other to accommodate their patients. One such partnership is between the Northwell Health System of New York and the Boca Raton Regional Hospital of Florida, under which patients who travel from New York to Florida and vice versa can expect to continue treatment in the state they are visiting.¹⁶ Such measures would undoubtedly make it easier for doctors in New York, for instance, to provide care services to a patient in Florida by facilitating their coordination. Beyond the utilization of the aforementioned measures, it would essentially be legally prohibited for a doctor in one state to provide their services in another state.

Patient Insurance and Payment Considerations

If any of the aforementioned measures are not able to be used by doctors from their home state, snowbird patients would have to seek coverage from a completely new healthcare provider, which would likely pose other challenges, namely, insurance and payment issues.¹⁷

If the patient belongs to a health maintenance organization (HMO), for instance, they will likely face coverage issues while traveling outside of their home state. HMOs tend only to provide coverage for treatment that is received from doctors who are inside of their network. Generally speaking, HMOs will only cover out-of-network treatment if it is for an emergency. While some will provide coverage for treatment sought while on an out-of-town trip,¹⁸ they may have very specific rules about the maximum length of a trip for which they will cover out-of-town care, whereas others may have more flexible guidelines. Under either type of rule, snowbird patients aren’t likely to be covered.¹⁹ Therefore, snowbird patients enrolled in HMO plans would likely have to look elsewhere for coverage.

Beyond the complications of being a snowbird patient, there are some relatively simple guidelines to be aware of. Generally, if a snowbird patient is enrolled in Medicare, they are entitled to nationwide coverage. Essentially, Medicare will provide coverage for the medical services patients receive regardless of the state they are in as long as they receive medical services from providers who accept Medicare.²⁰

For those snowbird patients who are enrolled in a Medicaid program, coverage issues can be a bit more complicated.²¹ Unlike Medicare, Medicaid is not run solely by the federal government but is run jointly by federal and state governments. This essentially means that benefits, eligibility and provider access vary from one state to another. Barring any exceptions, Medicaid generally only covers care received in the state that provides the Medicaid coverage. While emergency care is covered outside the state, non-emergency care is generally not covered outside of the state that provides Medicaid coverage. In order to avoid such complications, the patient is entitled to apply for Medicaid coverage each time they move if they can establish residency according to the rules of the new state.²² A very important caveat to that, however, is that just because the patient qualifies for Medicaid in one state does not necessarily mean they will qualify for it in another. To avoid any potential complications, snowbird patients can purchase travel insurance. If your patient is a snowbird and is concerned about having coverage, they might want to consider purchasing a domestic travel medical policy.

Regulation Compliance Considerations

The benefits of telehealth can be significant. As a snowbird living in another state, the connectivity they have with their doctor from their home state would likely provide a level of comfort they would not have while going to a completely new care provider. However, the practice of telehealth on the part of doctors poses unique challenges. To begin with, providers would need to ensure they comply with the differing regulations of any and all states their patients might be in. Doctors would also need to ensure that they are in compliance with privacy and security standards for the secure transmission of protected health information between them and their patients.

Certain states, New York being one, might not have any specific laws or regulations pertaining to the standard of care for telehealth providers.²³ In such a situation, a court of law would have to decide the applicable standard of care as far as doctors are concerned. With that being said, however, doctors should ensure that they treat a telehealth appointment just as seriously as an in-person appointment. Just because an appointment is being conducted via the use of telehealth does not make it any less formal. At a minimum, doctors and dentists would be expected to conform to the same standard of care in a telehealth appointment as an in-person appointment.

The three components of any applicable standard of care for telehealth appointments are compliance with acknowledged medical procedures, respect for the patient’s individuality and regard for particular conditions and objective possibilities.²⁴ Therefore, any malpractice committed while conducting telehealth appointments would be subject to the same legal repercussions as any in-person malpractice. Any telehealth appointment should be documented just as any in-person appointment would be, and all appropriate procedures should be followed.²⁵

Treatment Guidelines

So, what can doctors do to make themselves more accommodating to snowbird patients? To begin with, they should determine whether any of their patients can be classified as snowbirds. Patients should be asked, possibly as part of any intake sheet they complete, whether they spend a significant part of the year out of state. Doctors can also have their patients identify whether they have a healthcare provider out of state and obtain that other provider’s contact information. The point here is that doctors should be aware of any relevant treatment the patient might have received out of state. If the patient has received any relevant out-of-state healthcare services, those records should be obtained so that a full history is available.

Doctors of snowbird patients should also make an effort to coordinate care with the patient’s other provider(s). For example, as part of the care plan, providers’ offices should communicate if they have a mutually common snowbird patient in order to establish a direct conversation, should one be necessary. These measures can go a long way to ensuring continuous, effective healthcare for the snowbird patient. Finally, before doctors and dentists even start to offer care to snowbirds, they need to ensure that their professional liability insurance covers it. Doctors and dentists may need to purchase supplemental coverage for such care.

MLMIC policyholders can reach out to our healthcare attorneys for questions about the treatment of snowbird patients, telemedicine or to ask any other healthcare law inquiries by calling (800) 275-6564 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (844) 667-5291 or by emailing hotline@tmglawny.com.

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Sources

1. “10 Surprising Statistics on Snowbirds in Florida for 2023.” Florida Realty Marketplace, 19 January 2023, https://www.floridarealtymarketplace.com/ blog/10-surprising-statistics-on-snowbirds-in-florida-for-2023.html. Accessed 7 July 2024.
2. Baucum, Joseph. “Snowbirds a Challenge for Health Care Industry.” Pensacola News Journal, 8 January 2017, https://www.pnj.com/story/money/ business/2017/01/08/snowbirds-challenge-health-care-industry/96171772/
3. Ibid.
4. Feldman, Sandra. “Florida Out-Of-State Telehealth Reg Law.” Wolters Kluwer, 19 February 2021, https://www.wolterskluwer.com/en/expert-insights/ floridas-out-of-state-telehealth-registration-law. Accessed 7 July 2024.
5. Florida Statutes, Sec. 456.47.
6. Saley, Chad. “Interstate Medical Licensure Compact States List and Guide for 2024.” CompHealth, 11 April 2024, https://comphealth.com/resources/ interstate-medical-licensure-compact. Accessed 7 July 2024.
7. Interstate Medical Licensure Compact. Home Page, 10 July 2024, https://www.imlcc.org/
8. “Cross State Licensing.” CCHP, 20 March 2024. https://www.cchpca.org/new-york/?category=professional-requirements&topic=cross-statelicensing-professional-requirements
9. Trotter, Caleb. “In 30 States, You Can’t Use Telehealth With Out-of-State Doctors.” Pacific Legal Foundation, 13 December 2023, https://pacificlegal. org/30-states-telehealth-rules/. Accessed 7 July 2024.
10. Ibid.
11. Ibid.
12. Ibid.
13. AAFP. “Legal Requirements for Telehealth” https://www.aafp.org/family-physician/practice-and-career/managing-your-practice/telehealth-andtelemedicine/legal-requirements-for-telehealth.html
14. Ibid. 4 4ISSUE 19 | FOURTH QUARTER 2024
15. Telemedicine Prescribing of Controlled Substances When the Practitioner and the Patient Have Not Had a Prior In-Person Evaluation. (2023, March 1). Federal Register. https://www.federalregister.gov/documents/2023/03/01/2023-04248/telemedicine-prescribing-of-controlled-substances-whenthe-practitioner-and-the-patient-have-not-had
16. cclark@healthleadersmedia.com. “NY Health System, FL Hospital Partner for Snowbird Care.” HealthLeaders Media, 23 February 2015. https://www. healthleadersmedia.com/strategy/ny-health-system-fl-hospital-partner-snowbird-care
17. Norris, Louise. “How Health Insurance Works When You Live in Multiple States.” Verywell Health, 22 July 2023, https://www.verywellhealth.com/health- insurance-for-multiple-states-4584359. Accessed 7 July 2024.
18.  Carlson, Bob. “Solving the Snowbird Health Care Dilemma.” Retirement Watch, 27 December 2018, https://www.retirementwatch.com/solving-thesnowbird-health-care-dilemma
19.  Ibid.
20. Norris, Louise. “How Health Insurance Works When You Live in Multiple States.” Verywell Health, 22 July 2023, https://www.verywellhealth.com/healthinsurance-for-multiple-states-4584359. Accessed 7 July 2024.
21. Ibid.
22. Norris, Louise. “How Health Insurance Works When You Live in Multiple States.” Verywell Health, 22 July 2023, https://www.verywellhealth.com/health insurance-for-multiple-states-4584359. Accessed 7 July 2024.
23. Wheel. “New York Telehealth Regulations and Laws.” 4 April 2023. https://www.wheel.com/state-telehealth-regulations/new-york
24. Hol apek, Tomas., Martin olc, and Petr ustek. (2023). “Telemedicine and the Standard of Care: A Call for a New Approach?” Frontiers in Public Health, 11, 2023. https://doi.org/10.3389/fpubh.2023.1184971

This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.