Kentucky’s New Telehealth Act

Back in 2014, I wrote an article for MD-Update about treating patients by “telehealth” in Kentucky.1 While Kentucky was one of the first states to authorize physician use of telehealth2 and to prohibit health plans from excluding coverage of telehealth services, the Kentucky telehealth laws made practicing telemedicine cumbersome and left unanswered questions about treating patients by telehealth across state lines.

During the 2018 session, the legislature substantially overhauled Kentucky’s telehealth laws to make the use of telehealth in the Commonwealth more accessible to providers and patients. This article offers a brief overview of Senate Bill 112, “An Act relating to Telehealth3” and what the Act means for Kentucky physicians and other healthcare providers who use telehealth, or want to incorporate it into their practice. SB 112 was signed by the governor but is not yet codified because it will not go into effect until July 1, 2019.

The most comprehensive changes are found in a new section of the Kentucky Revised Statutes covering Medicaid.4 Specific to Medicaid and Medicaid MCOs, the Act requires the Cabinet for Health and Family Services (the “Cabinet”) to keep a list of Kentucky Medicaid participating providers who are authorized to deliver telehealth services in the Commonwealth to Medicaid recipients. Specialists are only permitted to furnish telehealth services to Medicaid patients if they are already Kentucky Medicaid providers. Requests for prior authorization for referrals or consultations with a specialist must come from a Medicaid patient’s primary care provider and the specialist must coordinate the patient’s care with that primary care provider.

The Act amends Kentucky’s managed care laws to prohibit the Cabinet, Medicaid MCOs and health insurance plans, including plans contracted by the state to provide healthcare coverage for state employees (collectively “Payers”) from:

(i.) requiring a provider to be physically present with a patient or client unless the provider determines that it is necessary to perform the service in person;
(ii.) requiring a provider to obtain a prior authorization to treat a patient by telehealth if a prior authorization isn’t required to provide the same service to the patient in person;
(iii.) denying coverage of telehealth services based solely on the type of communication technology used to deliver the service;5

(iv.) requiring a provider to join a telehealth network; or
(v.) requiring a provider to be employed by another provider or agency to deliver a telehealth service if the requirement wouldn’t apply to providing the service in person.

Payers must require a provider to be licensed or certified to practice in Kentucky in order to receive reimbursement for healthcare services by telehealth, but are only required to cover telehealth services that are medically necessary.

A key provision in the Act is the definition of “telehealth.” The definition of “telehealth” currently on the books is only applicable to Kentucky physicians and is written in very broad terms.6 Curiously, the Act doesn’t amend or replace the current telehealth definition with the new definition created by the Act – leaving Kentucky physicians to contend with two statutory definitions of “telehealth.”

The new definition of “telehealth” for purposes of Medicaid is far more specific: “the delivery of healthcare-related services by a Medicaid provider who is a healthcare provider licensed or certified in Kentucky to a Medicaid recipient through a face-to-face encounter with access to real-time interactive audio and video technology or store and forward services that are provided via asynchronous technologies as the standard practice of care where images are sent to a specialist for evaluation.”

The face-to-face encounter requirement is met by using store and forward or asynchronous telecommunications technologies (e.g., file transfer, email), where the provider can access the patient’s medical history before the telehealth encounter. This new definition additionally provides that telehealth services cannot be delivered by email, text, facsimile or telephone, and can only be delivered via a HIPAA secure connection.

Importantly, the telehealth definition doesn’t require a healthcare provider to be physically present in the Commonwealth to deliver telehealth services to a patient. It only requires the provider to be licensed or certified in Kentucky to provide telehealth services. This is significant. It clarifies that a Kentucky provider could treat a patient by telehealth while they are out-of-state at a conference or for other reasons, or could be licensed and maintain practices in both Kentucky and another state, and legally treat their Kentucky patients by telehealth as necessary when they are physically at their out-of-state practice.

The Act does not change a provider’s obligation to observe any statutes and policies applicable to their licensure regarding telehealth. As an example, Kentucky physicians by law must obtain a patient’s signed informed consent to telehealth treatment in advance which explains the limitations of telehealth services absent a physical exam, and the inherent security and confidentiality risks of electronically transmitting a patient’s health information. Physicians must also have policies and procedures to protect and maintain the confidentiality, privacy and security of their patients’ health information received via telehealth.7 Additionally, the Kentucky Board of Medical Licensure issued a Board Opinion in 2014 “Regarding the Use of Telemedicine Technologies in the Practice of Medicine” which provides detailed guidance to Kentucky Physicians using “telemedicine” which is a separate term from “telehealth” for purposes of a physician’s practice.8

With the rapid pace at which communication technologies continue to advance, it is not unreasonable to expect more changes to come to telehealth laws in the next few years on both the state and federal level.

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.

1Available at http://www.md-update.com/2014/05/treating-pat¡ents-by-telehealth-in-kentucky/.

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

318 RS SB 112/GA

4KRS Chapter 205

5Current law only authorizes CHFS to reimburse for Medicaid services via telehealth if furnished by a Kentucky Medicaid provider through the Kentucky Telehealth Network. On the same date the Act goes into effect next July, the statute authoring the Kentucky Telehealth Board and the Kentucky Telehealth Network will be repealed.

6K.R.S. § 311.550(17) 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”

7See K.R.S. § 311.5975.

8
https://kbml.ky.gov/board/Pages/Opinion-and-Policy-Statements.aspx