By: Sarah Cronan Spurlock and Ozair Shariff

Technology advancements have had a significant impact on the way healthcare is delivered, particularly to patients in rural areas and to those with restricted access to medical care.

Medical providers use technology to remotely monitor patients, prescribe medications and provide a wide range of preventive medical services, in some cases, reducing the frequency of office visits and enabling more effective care management options for patients with chronic illnesses.

A provider’s use of technology to deliver healthcare to a patient in another location—commonly known as telemedicine or telehealth—is not new to Kentucky. Historically, however, Medicare and Kentucky Medicaid programs have not reimbursed providers for this type of medical service, or limited reimbursement to very narrow circumstances, posing a significant obstacle to the use and expansion of telemedicine.

Telehealth Reform Bill

In April 2018, Kentucky passed SB 112, a telehealth reform bill expanding Medicaid and insurance coverage and reimbursement for Kentucky-licensed providers who deliver healthcare services to Kentucky residents using telehealth technology.

Sponsor Senator Ralph Alvarado explained that SB 112 will positively impact healthcare delivery as it “allows providers to implement cost-saving strategies such as video conference follow-ups and remote patient monitoring that decreases hospitalizations and increases the quality of care.” The bill takes effect July 1, 2019.

SB 112 defines telehealth as the “delivery of healthcare-related services by a healthcare provider who is licensed in Kentucky to a patient or client 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 bill further states that the requirement for a face-to-face encounter is satisfied with the use of asynchronous telecommunications technologies where the provider has access to the patient’s medical history prior to the telehealth encounter. As such, this definition of telehealth allows for the use of both real-time interactive video encounter between a patient and provider in different locations as well as store and forward platforms where an image (such as a radiology film) is created and stored in one location and forwarded for clinical evaluation to a specialist in another location.

By contrast, the delivery of services through email, text chat, facsimile or standard audio-only telephone call do not qualify as telehealth services. The bill prohibits the use of telehealth for the performance of an abortion, specifying that a physician performing or inducing an abortion must be present in person and in the same room with the patient.

Reimbursement Provisions

In addition to defining what qualifies as telehealth, SB 112 sets forth important provisions impacting reimbursement for these services, specifically:

• Requiring Medicaid, Medicaid managed care organizations and other health plans to reimburse for covered services provided through telehealth.

• Providing that payors must require a telehealth provider to be licensed in Kentucky to receive reimbursement.

• Establishing telehealth payment parity requirements, ensuring that reimbursement rates for telehealth services are equal to the rates paid by health plans for those same services that are delivered in person.

Additionally, the bill prohibits Medicaid, Medicaid managed care organizations and health plans from taking certain actions relating to telehealth, including:

• Restricting reimbursements by requiring provider to be physically present with patients.
• Requiring prior authorization, or imposing other restrictions for telehealth services that would otherwise not be required for services provided in person.
• Requiring a demonstration that telehealth is necessary.
• Restricting coverage solely based on the technology used to deliver telehealth services.
• Requiring that a provider be a part of a telehealth network to be reimbursed for the services.

Providers interested in providing care via telehealth should consider their ethical obligations and professional licensure requirements in this context, particularly with respect to the physician-patient relationship, patient safety and patient confidentiality.

The Kentucky Board of Medical Licensure addressed telehealth practice considerations in a 2014 Board Opinion “Regarding the Use of Telemedicine Technologies in the Practice of Medicine.”

The Board Opinion provides guidance on various topics that will be of interest to physicians, including:

• Determining when a physician-patient relationship is established.
• Proper evaluation and treatment
• Obtaining informed consent
• Referrals for emergency services
• Privacy and security of patient information
• Prescribing

When considering telehealth technology, providers should also note that SB 112 requires telehealth services to be delivered using a secure communications connection that complies with HIPAA.

Ensuring a secure communication is used to provide telehealth services is also an important component of a provider’s legal and ethical duty to maintain patient confidentiality, as transmitted images and telehealth encounters may otherwise be vulnerable to eavesdropping by a third party.

–Sarah Cronan Spurlock and Ozair Shariff are with Stites & Harbison in Louisville, Ky.