By Lindsay K. Scott

Following expansion by the Department of Human Health Services’ Office for Civil Rights (“OCR”) and the Centers for Medicare and Medicaid Services (“CMS”) of federal telehealth services and relaxation of certain requirements, Kentucky Medicaid is following suit.

On March 17, 2020, the Centers for Medicare and Medicaid Services published guidance expanding the use of telehealth and relaxing restrictions on its use. The Office for Civil Rights, the agency responsible for enforcement of HIPAA, followed up with guidance making it clear that it will not enforce penalties for the use of technology that is not HIPAA compliant, when used in the good faith provision of telehealth services:

Under this Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency.  Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

The Kentucky Department for Medicaid Services (“DMS”) published guidance on March 20, 2020 that incorporates OCR’s guidance and provides additional tools for Kentucky Medicaid providers to treat their patients remotely.

The Cabinet for Health and Family Services has published a new emergency regulation that allows for “telecommunication or other electronically mediated health services” to be used for the delivery of Medicaid services as a reimbursable “telehealth-like” service, wherever appropriate. If a service could have been provided via telehealth, but the patient or provider does not have the capability to participate in the service via telehealth, the service may be delivered via telephone as a “telecommunication or other electronically mediated health service.” Providers are expected to facilitate appropriate electronic or other data exchanges where the service would normally be dependent on the exchange of visual information.

This allowance for delivery of patient care via telephone, when other capabilities are unavailable, can go a long way toward easing the burdens on providers (and patients) during this public health emergency.

DMS has previously issued guidance to general Medicaid providers; this new guidance offers additional information to all types of providers and clarifies the types of behavioral health services permissible through telehealth.

Wyatt, Tarrant & Combs is actively tracking new developments on behalf of our clients.  If you have any questions, please contact Lindsay Scott at lscott@wyattfirm.com.