Treating Patients by Telehealth in Kentucky

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You may already be practicing telehealth, or considering it, if you have patients who cannot be seen in your office due to physical limitations or transportation issues. Kentucky was one of the first states to pass telehealth laws, by authorizing physician use of telehealth in 2000 and creating the Kentucky Telehealth Board to develop the Kentucky Telehealth Network (“KTN”). Health plans are now prohibited by law from excluding coverage of telehealth if the service is otherwise covered and the telehealth consultation is conducted through the Kentucky Telehealth Network or is otherwise approved by the health plan.1

The use of telehealth by Kentucky providers is growing, and it is important for physicians to be familiar with the basic “dos” and “don’ts” of practicing telehealth. Last year, Kentucky Medicaid amended its telehealth regulations expanding the types of health care providers and services available through telehealth.2 This article provides an overview of the current state of telehealth law for physicians in the Commonwealth.

Telehealth Under Kentucky’s Physician Licensure Laws

Kentucky defines “telehealth” for physicians as “the use of interactive audio, video, or other electronic media to deliver health care. It includes the use of electronic media for diagnosis, consultation, treatment, transfer of medical data, and medical education.”
3 Physicians may practice telehealth in Kentucky but only if the physician (i) first obtains the patient’s signed informed consent to telehealth treatment, which explains the limitations of telehealth treatment absent a physical exam and the inherent security and confidentiality risks of electronically transmitting a patient’s health information; and (ii) has policies and procedures to protect and maintain the confidentiality, privacy, and security of the health information received via telehealth.4

A physician cannot prescribe medication in response to a patient email or telephonic request, unless the physician already has a proper physician-patient relationship with the patient.5 This means the physician has already diagnosed the patient’s condition through “accepted medical practices” and verified the patient’s identity, and has a current medical record for the patient in which the diagnosis is documented, as should be the prescription request.6 An initial patient evaluation performed by internet or telephone questionnaire is not acceptable. Prescribing in violation of the statute constitutes dishonorable, unethical, and/or unprofessional conduct subject to KBML disciplinary action.

Practicing telehealth across state lines is problematic. Physician licensure laws vary from state to state. The KBML’s policy7 is that physicians in other states actively practicing medicine on patients in Kentucky should also be licensed to practice in Kentucky. Otherwise, the KBML cannot effectively enforce Kentucky licensure laws and regulations against them to protect Kentuckians. Most states with telehealth laws have similar law or policy. Consequently, Kentucky physicians practicing telemedicine from Kentucky on patients in other states risk violating the licensure laws of the other states unless they are also licensed to practice in those states.

Kentucky Medicaid and Telehealth

Last year, Kentucky Medicaid updated the Medicaid telehealth regulations to expand the types of providers and Medicaid covered services available by telehealth.8 To be reimbursed by Medicaid for a telehealth consultation:9

► the physician must be a Kentucky Medicaid provider;
► the patient must be referred by another provider for a telehealth consultation;
► the patient must sign a Medicaid compliant informed consent for telehealth treatment;
► the telehealth consultation must be performed via the KTN;
► the physician must be a member of the KTN and perform the consultation pursuant to its standards.10

The consultation must be conducted through a secure live two-way interactive audio-visual telecommunication line;11

The telehealth hub site where the physician is located, and the spoke site where the patient is located, must use authentication and identification protocols to ensure confidentiality.12

Medicaid covers medically necessary physician telehealth consultations performed at approved locations if the same service provided in-person would be covered. Telehealth claims must be properly coded and include the “GT” modifier. Reimbursement for telehealth will typically be at rates comparable to existing rates for the same service performed in-person in the applicable setting.13 Physicians should carefully document the referral and medical necessity of any telehealth consultation they perform, the resulting diagnosis and treatment plan, and furnish this information to the referring provider.14

Telehealth Under Federal Law

Medicare pays for some Part B services performed by an approved practitioner when the Medicare eligible patient is located in a rural HPSA15 outside a Metropolitan Statistical Area.16 Like Medicaid, Medicare requires physicians to perform telemedicine face-to-face by live, interactive audio-video telecommunication. Services that do not require a face-to-face patient encounter, and are most often performed by asynchronous “store and forward” telecommunication, such as teleradiology or telepathology, are not considered telehealth by CMS and instead reimbursed as if they were physically performed at the patient’s location.

The Affordable Care Act further promotes using telehealth in various ways, some of which are still being developed. Examples include directing the Center for Medicare and Medicaid Innovation to explore a new care model to facilitate inpatient care at local hospitals through remote electronic monitoring by specialists; requiring Accountable Care Organizations to use telehealth to promote evidence-based medicine, report quality and cost measures, engage patients and coordinate care, and by allowing physicians to use telehealth to certify the need for home health services or DME for Medicare patients.17

FOOTNOTES

K.R.S. §304.17A-138.

2
See generally, 907 Ky.Admin.Reg. 3:170.

3K.R.S. § 311.550(17). Unlike Kentucky, federal Medicare and Medicaid regulations differentiate between “telemedicine,” which requires real-time, interactive telecommunication between physician and patient by use of audio-visual equipment, and “telehealth,” which generally refers to the use of telecommunications and information technology to provide access to health assessment, diagnosis, intervention, consultation, supervision, and information across distances. See e.g., 42 C.F.R. § 410.78, and http://www.medicaid.gov.

4K.R.S. § 311.5975 See also, AMA Ethics Opinions 5.025 and 5026 (2002).

5K.R.S. §311.597(1)(e)

6
Id.

7KBML “Telemedicine Policy Statement” (1997).

8In addition to physicians, examples of Medicaid authorized telehealth practitioners now include APRNs, optometrists, chiropractors, licensed mental health professionals, and licensed physical and occupational therapists, subject to various restrictions imposed by regulation. See 907 Ky.Admin.Reg. 3:170, Section 3.

9A telehealth consultation under Kentucky Medicaid law is a medical or health consultation to diagnose or treat a patient “that requires the use of advanced telecommunication technology, including compressed digital interaction interactive video, audio or data transmission; clinical data transmission via computer imaging for teleradiology or telepathology; and other technology that facilitates access to health care services. K.R.S. § 205.510(15).

10
See generally, 907 Ky.Admin.Reg. 3:170.

11907 Ky.Admin.Reg. 3:170, Sections 2(6).

12
Id. at Sections 2(6) and 3(2).

13Medicaid managed care organizations are not obligated to do the same.Id. at Sections 2(1)(a) and (b).

14Id. at Sections 7 and 8.

15Federal Health Professional Shortage Area

16As determined by the HRSA.

17
http://www.cms.gov/Medicare/Medicare-General-Information/Telehealth; see also Telemedicine in the patient Protection and Affordable care Act (American Telemedicine Association, 2010).

MEDICAID COVERS MEDICALLY NECESSARY PHYSICIAN TELEHEALTH CONSULTATIONS PERFORMED AT APPROVED LOCATIONS IF THE SAME SERVICE PROVIDED IN-PERSON WOULD BE COVERED. TELEHEALTH CLAIMS MUST BE PROPERLY CODED AND INCLUDE THE “GT” MODIFIER. REIMBURSEMENT FOR TELEHEALTH WILL TYPICALLY BE AT RATES COMPARABLE TO EXISTING RATES FOR THE SAME SERVICE PERFORMED IN-PERSON IN THE APPLICABLE SETTING.

Sarah Charles Wright is a partner with Sturgill, Turner, Barker & Moloney, PLLC. Ms. Wright advises health care entities and providers on corporate compliance with state and federal laws and regulations. She can be reached at swright@sturgillturner.com or (859) 255-8581.

This article is intended as a summary of newly enacted state law and does not constitute legal advice.