PREVIOUS VERSION

The previous document that this document is based upon is available.

201 KAR 5:055.Telehealth.

RELATES TO:

KRS 211.332, 211.334, 211.335, 211.336, 320.210, 320.300, 320.390, 367.680-367.690, 42 U.S.C. secs. 1320d to 1320d-9, 12101 et. seq.

STATUTORY AUTHORITY:

KRS 211.332, 211.336, 320.390(2)

NECESSITY, FUNCTION, AND CONFORMITY:

KRS 320.390(2) requires the Board of Optometric Examiners to promulgate administrative regulations to prevent abuse and fraud through the use of telehealth services, prevent fee-splitting through the use of telehealth services, and utilize telehealth in the provision of optometric services and in the provision of continuing education. KRS 211.336 establishes requirements for a state agency that promulgates administrative regulations relating to telehealth. This administrative regulation establishes requirements for the use of telehealth services.

Section 1.

Definitions.

(1)

"Doctor of Optometry" means an individual licensed by the Kentucky Board of Optometric Examiners to engage in the practice of optometry.

(2)

"Patient" means the person receiving services or items from a doctor of optometry.

(3)

"Practice of optometry" is defined by KRS 320.210(2).

(4)

"Telehealth" is defined by KRS 211.332(5) and 320.390(3).

Section 2.

Communication and Informed Consent Requirements.

(1)

All telehealth services by a doctor of optometry shall be conducted:

(a)

By a doctor of optometry to a patient or to another health care provider at a different location; and

(b)

Over secure telecommunication technologies, including technologies such as synchronous and asynchronous technology, remote patient monitoring technology, and audio-only encounters.

(2)

Prior to the delivery of telehealth services, a doctor of optometry shall obtain the informed consent of the patient or obtain the consent by another appropriate person with authority to make the health care treatment decision for the patient such as the legal guardian or medical power of attorney.

(a)

Informed consent by a patient may be provided in writing, verbally acknowledged, or electronically submitted.

(b)

The informed consent shall include an acknowledgment of the risks and limitations of telehealth services.

Section 3.

Jurisdictional Considerations.

(1)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may provide telehealth services in the practice of optometry:

(a)

To a person who is a permanent resident of Kentucky if the person is located in Kentucky;

(b)

To a person who is a permanent resident of Kentucky if the person is temporarily located outside of Kentucky; or

(c)

To a person who is not a permanent resident of Kentucky if the person is temporarily located in Kentucky.

(2)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may provide telehealth services if the doctor of optometry is not physically located in Kentucky to a permanent resident of Kentucky.

(3)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may establish a doctor-patient relationship using telehealth and digital technologies.

Section 4.

Representation of Services and Code of Conduct.

(1)

A doctor of optometry shall not engage in false, misleading, or deceptive advertising.

(2)

An advertisement for telehealth services shall comply with 201 KAR 5:002, Section 2.

(3)

(4)

A doctor of optometry providing optometry services via telehealth shall:

(a)

Verify the identity of the patient before telehealth services are performed;

(b)

Collect and review a patient's medical history;

(c)

Provide any applicable accommodations required by the Federal Americans with Disabilities Act, 42 U.S.C. secs. 12101 et seq., as amended;

(d)

Maintain patient privacy and security in accordance with applicable state and federal law;

(e)

Gather and transmit protected health information in compliance with the federal Health Insurance Portability and Accountability Act of 1996, as amended, 42 U.S.C. secs. 1320d to 1320d-9;

(f)

Document and maintain a record of the patient's presenting problem or purpose for the telehealth service, including the diagnosis or treatment and include which services were provided by telehealth;

(g)

Perform telehealth services with a recognized Current Procedural Terminology Code maintained by the American Medical Association, if applicable;

(h)

Secure all required credentialing for reimbursement of telehealth services; and

(i)

Obtain privileges if required by hospitals or facilities to admit and treat patients.

(5)

An optometrist providing telehealth services shall not split fees in accordance with KRS 320.300(3);

(6)

Prescriptions for controlled substances shall not be made via telehealth by a doctor of optometry.

(7)

A contact lens or visual aid glasses prescription issued through telehealth shall include the requirements established in the Kentucky Consumer Protection in Eye Care Act, KRS 367.680 to 367.690.

Section 5.

Utilization of Telehealth in Provision of Continuing Education. Credit for telehealth educational presentations shall be granted in accordance with 201 KAR 5:030.

HISTORY: (41 Ky.R. 672; 1040; 1308; eff. 11-19-2014; 49 Ky.R. 1974; 50 Ky.R. 22; eff. 7-24-2023.)

FILED WITH LRC: June 13, 2023

CONTACT PERSON: Christi LeMay, Executive Director, Kentucky Board of Optometric Examiners, 2365 Harrodsburg Road, Suite A240, Lexington, Kentucky 40504; phone (859) 246-2744; fax (859) 246-2746; email christi.lemay@ky.gov.

201 KAR 5:055.Telehealth.

RELATES TO:

KRS 211.332, 211.334, 211.335, 211.336, 320.210, 320.300, 320.390, 367.680-367.690, 42 U.S.C. secs. 1320d to 1320d-9, 12101 et. seq.

STATUTORY AUTHORITY:

KRS 211.332, 211.336, 320.390(2)

NECESSITY, FUNCTION, AND CONFORMITY:

Section 1.

Definitions.

(1)

~~"Contact lens prescription" is defined by KRS 367.680(3).~~

(2)

~~"Eye examination" means an examination that meets the requirements for a complete eye examination established in 201 KAR 5:040, Section 7(1).~~

(3)

~~"Face to face" means in person and not via telehealth.~~

(4)

~~"Licensed health care professional" means an optometrist licensed pursuant to KRS Chapter 320, or a physician or osteopath licensed under KRS 311.550(12).~~

(5)

"Doctor of Optometry~~Optometrist~~" means an individual licensed by the Kentucky Board of Optometric Examiners to engage in the practice of optometry.

(2)(6)

"Patient" means the person receiving services or items from a doctor of optometry~~an optometrist or a physician~~.

(7)

~~"Physician" is defined by KRS 311.550(12).~~

(3)(8)

"Practice of optometry" is defined by KRS 320.210(2).

(9)

~~"Prescription" means an order for a pharmaceutical agent, or any other therapy within the scope of practice of an optometrist or a physician.~~

(10)

~~"Prescription for eyewear" means a written prescription for visual aid glasses or a contact lens prescription after a complete eye examination is performed by an optometrist or physician.~~

(4)(11)

"Telehealth" is defined by KRS 211.332(5) and 320.390(3) ~~and KRS 211.332~~.

(12)

~~"Telehealth provider" means an optometrist licensed pursuant to KRS Chapter 320 who performs a telehealth consultation.~~

(13)

~~"Telepractice" means the practice of optometry that is provided by using communication technology that is two (2) way, interactive, simultaneous audio and video.~~

(14)

~~"Visual aid glasses" is defined by KRS 320.210(4).~~

Section 2.

~~Patient Identity,~~ Communication and Informed Consent Requirements.

(1)

All telehealth services by a doctor of optometry shall be conducted:

(a)

By a doctor of optometry to a patient or to another health care provider at a different location; and,

(b)

Over secure telecommunication technologies, including technologies such as~~but not limited to~~ synchronous and asynchronous technology, remote patient monitoring technology, and audio-only encounters.

(2)

Prior to the delivery of telehealth services, a doctor of optometry shall~~must~~ obtain the informed consent of the patient or obtain the consent by another appropriate person with authority to make the health care treatment decision for the patient such as the legal guardian or medical power of attorney.

(a)

~~For purposes of this section,~~ Informed consent by a patient may~~can~~ be provided in writing, verbally acknowledged, or electronically submitted.

(b)

The informed consent shall~~must~~ include an acknowledgment of the risks and limitations of telehealth services.~~An optometrist-patient relationship shall not commence via telehealth.~~

(2)

An initial, in-person meeting for the optometrist and patient who will prospectively utilize telehealth shall occur in order to evaluate whether the potential or current patient is a candidate to receive services via telehealth.

(3)

~~An optometrist who uses telehealth to deliver vision or eye care services shall at the initial, face-to-face meeting with the patient:~~

(a)

~~Verify the identity of the patient;~~

(b)

~~Establish a medical history and permanent record for the patient;~~

(c)

~~Obtain alternative means of contacting the patient other than electronically such as by the use of a telephone number or mailing address;~~

(d)

~~Provide to the patient alternative means of contacting the optometrist other than electronically such as by the use of a telephone number or mailing address;~~

(e)

~~Provide contact methods of alternative communication the optometrist shall use for emergency purposes such as an emergency on call telephone number;~~

(f)

~~Document if the patient has the necessary knowledge and skills to benefit from the type of telepractice provided by the optometrist; and~~

(g)

~~Inform the patient in writing and document acknowledgement of the risk and limitations of:~~

1.

~~The use of technology in the use of telepractice;~~

2.

~~The potential breach of confidentiality of information or inadvertent access of protected health information due to technology in telepractice;~~

3.

~~The potential disruption of technology in the use of telepractice;~~

4.

~~When and how the optometrist will respond to routine electronic messages;~~

5.

~~The circumstances in which the optometrist will use alternative communications for emergency purposes;~~

6.

~~Others who may have access to patient communications with the optometrist;~~

7.

~~How communications shall be directed to a specific optometrist;~~

8.

~~How the optometrist stores electronic communications from the patient; and~~

9.

~~Whether the optometrist may elect to discontinue the provision of services through telehealth.~~

Section 3.

Jurisdictional Considerations.

(1)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may provide telehealth services in the practice of optometry:

(a)

To a person who is a permanent resident of Kentucky if~~while~~ the person is located in Kentucky;

(b)

To a person who is a permanent resident of Kentucky if~~while~~ the person is temporarily located outside of Kentucky; or

(c)

To a person who is not a permanent resident of Kentucky if~~while~~ the person is temporarily located in Kentucky.

(2)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may provide telehealth services if~~when~~ the doctor of optometry is not physically located in Kentucky to a permanent resident of Kentucky.

(3)

A doctor of optometry licensed by the Kentucky Board of Optometric Examiners may establish a doctor-patient relationship using telehealth and digital technologies.A licensed health care professional providing eye and vision services via telehealth shall be licensed by the Kentucky Board of Optometric Examiners or the Kentucky Board of Medical Licensure if services are provided:

(1)

~~To a person physically located in Kentucky; or~~

(2)

~~By a person who is physically located in Kentucky.~~

Section 4.

Representation of Services and Code of Conduct.

(1)

A doctor of optometry~~A telehealth provider~~ shall not engage in false, misleading, or deceptive advertising.

(2)

An advertisement for telehealth services shall~~must~~ comply with 201 KAR 5:002, Section 2. A person shall not advertise an eye examination unless the requirements of 201 KAR 5:040, Section 7(1) are met. A person shall not purport to write a prescription for eyewear solely by using an autorefractor or other automated testing device.

(3)(2)

Evaluation, treatment, and consultation recommendations by a doctor of optometry via telehealth shall be held to the same standards of appropriate practice as those in traditional in-person clinical settings and established in 201 KAR 5:002, Section 3.Treatment and consultation recommendations made in an online setting, including a prescription or a prescription for eyewear via electronic means, shall be held to the same standards of appropriate practice as those in traditional practice, face-to-face settings. Treatment, including issuing a prescription for eyewear based solely on an online autorefraction, shall not constitute an acceptable practice or standard of care.

(4)

A doctor of optometry providing optometry services via telehealth shall:~~A telehealth provider shall:~~

(a)

Verify the identity of the patient before telehealth services are performed~~Not split fees in accordance with KRS 320.300(3)~~;

(b)

Collect and review a patient's medical history~~Shall maintain a medical record of a service or item provided to a patient via telepractice~~;

(c)

Provide any applicable accommodations required by the Federal Americans with Disabilities Act, 42 U.S.C. secs. 12101 et seq., as amended;

(d)

Maintain patient privacy and security in accordance with applicable state and federal law;

(e)

Gather and transmit protected health information in compliance with the federal Health Insurance Portability and Accountability Act of 1996, as amended, 42 U.S.C. secs. 1320d to 1320d-9;

(f)(c)

Document and maintain a record of the patient's presenting problem or, purpose for the telehealth service, including the~~, or~~ diagnosis or treatment and include which services were provided by telehealth~~telepractice~~;

(g)

Perform telehealth services with a recognized Current Procedural Terminology Code maintained by the American Medical Association, if applicable;

(h)

Secure all required credentialing for reimbursement of telehealth services; and

(i)

Obtain privileges if required by hospitals or facilities to admit and treat patients.

(5)

An optometrist providing telehealth services shall not split fees in accordance with KRS 320.300(3);

(6)

Prescriptions for controlled substances shall not be made via telehealth by a doctor of optometry.

(7)

A contact lens or visual aid glasses prescription issued through telehealth shall~~must~~ include the requirements established in the Kentucky Consumer Protection in Eye Care Act, KRS 367.680 to 367.690~~-690 et seq~~.

(d)

~~Use secure communications with each patient including encrypted text messages, via email or secure Web site and not use personal identifying information in non-secure communications; and~~

(e)

~~Dispense visual aids only in accordance with KRS 320.300(1).~~

Section 5.

Utilization of Telehealth in Provision of Continuing Education. Credit for telehealth educational presentations shall be granted in accordance with 201 KAR 5:030.~~, Section 2. Educational hours obtained through telehealth shall be considered as part of the credit hours granted in accordance with 201 KAR 5:030, Section 6(1).~~

Section 6.

~~This administrative regulation shall not be construed as giving jurisdiction over physicians licensed under KRS Chapter 311 to the Kentucky Board of Optometric Examiners.~~

HISTORY: (41 Ky.R. 672; 1040; 1308; eff. 11-19-2014; 49 Ky.R. 1974; 50 Ky.R. 22; eff. 7-24-2023.)

FILED WITH LRC: June 13, 2023

Page Generated: 5/12/2023, 4:33:50 PM

Title 201 | Chapter 005 | Regulation 055

201 KAR 5:055.Telehealth.

RELATES TO:

STATUTORY AUTHORITY:

NECESSITY, FUNCTION, AND CONFORMITY:

Section 1.

(1)

(2)

(3)

(4)

Section 2.

(1)

(a)

(b)

(2)

(a)

(b)

Section 3.

(1)

(a)

(b)

(c)

(2)

(3)

Section 4.

(1)

(2)

(3)

(4)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(5)

(6)

(7)

Section 5.

201 KAR 5:055.Telehealth.

RELATES TO:

STATUTORY AUTHORITY:

NECESSITY, FUNCTION, AND CONFORMITY:

Section 1.

(1)

(2)

(3)

(4)

(5)

(2)(6)

(7)

(3)(8)

(9)

(10)

(4)(11)

(12)

(13)

(14)

Section 2.

(1)

(a)

(b)

(2)

(a)

(b)

(2)

(3)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

1.

2.

3.