On June 10, 2015, after heated debate, Governor Rick Scott signed into law House Bill 633, instituting a 24-hour waiting period before a physician can terminate a pregnancy prior to viability or the third trimester. The controversial new law was in effect for a single day before a state court in Leon County granted a temporary injunction enjoining its enforcement. But as of February 26, 2016, the law is being enforced again after a Florida appellate court vacated the injunction. Physicians must now be aware of and follow the law’s new conditions for voluntary and informed consent to termination of a pregnancy.

Since 2011, Florida has required that physicians follow a strict protocol set forth in Florida Statute § 390.0111(3) before terminating a pregnancy, including the requirement that the gestational age of the fetus be verified by an ultrasound and that the pregnant woman be offered the opportunity to view the live ultrasound images and hear an explanation of the images. The bill amended that protocol to further require that the performing or referring physician verbally inform the pregnant woman of statutorily required information “while physically present in the same room” with the patient at least 24 hours before the procedure is performed. As such, physicians cannot satisfy this requirement using telemedicine. Physicians should be mindful that the law requires a full 24-hour waiting period, not merely that the procedure be performed on the next day.

A narrow exception to the 24-hour delay period was created for documented victims of sexual abuse. Under the new law, if a patient provides the performing physician with a copy of a restraining order, police report, medical record, or other documentation that evidences she is terminating a pregnancy due to rape, incest, domestic violence, or human trafficking, the 24-hour waiting period does not apply.

While doctors that offer termination of pregnancy services may view the 24-hour delay and the added visit as burdens for their patients and their office, they must comply with the law or face discipline and fines imposed by the applicable licensing board. As a best practice, physicians should meticulously document in the patient’s record the information necessary to show that voluntary and informed written consent was obtained. Substantial compliance with the statutory requirements of voluntary and informed consent, or a reasonable belief by the physician that complying with those requirements would threaten the life or health of the patient, are statutory defenses to an action brought for failure to obtain the requisite consent. Further, doctors that offer termination of pregnancy services in Florida should consult with a qualified attorney to ensure their compliance with the laws governing termination of pregnancy.

Sarah Warden is an attorney with Florida Health Law Center. Ms. Warden represents healthcare providers, including hospital systems, physician groups, and physicians in managed care arbitrations and transactions, employment agreements, and regulatory compliance matters involving anti-kickback and self-referral laws, Medicare and Medicaid, HIPAA, and the Affordable Care Act. Ms. Warden can be reached at swarden@flhealthlaw.com.

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