The Emerging World of Medicine – Kansas’s Telemedicine Standards and Regulations

In general, telehealth practice standards and rules governing where and how telehealth may be used to deliver care is largely determined at the state level. Federal laws create some legal considerations for telehealth providers, including the limitations on the ability to prescribe controlled substances via telehealth under the Ryan Haight Act of 2008 and standards required for Medicare reimbursement for telehealth services. However, because physicians are regulated at the state level, the use of telehealth is primarily a state issue.

In Kansas, a special licensure is not required to practice telemedicine. Kansas only requires physicians to obtain a regular license to practice medicine for the provision of telemedicine services. Moreover, the Kansas Telemedicine Act states that telemedicine services must be provided by “means of real-time, two-way interactive audio, visual, or audio-visual communications, including the application of secure video conferencing or store-and-forward technology to provide or support healthcare delivery.”

The standard of care and scope of practice for physicians will be defined under state laws and professional societies, including the AMA, and is defined to be the same standard of care as the in-person setting. In the AMA’s 2016 Telemedicine Guidelines and the FSMB Model Guidelines for State Medical Boards, it is emphasized that physicians engaging in telemedicine must meet the requirements of the traditional standards of care. See AMA Telemedicine Guidelines 1.1.1 and FSMB Model Policy, Supra, 2. This specifically includes appropriately establishing a relationship with the patient and conducting evaluations with appropriate consideration of the patient’s condition.

Kansas does not prohibit the establishment of a provider-patient relationship via telehealth. The telehealth encounter must meet the current standards of care, and the technologies used must be sufficient to allow for accurate treatment and diagnosis in accordance with the standard of care, including being properly licensed for the services provided, the performance of a history and physical examination, performing appropriate diagnostic testing, and completing health care records for the visit.

Both the FSMB and AMA have mandated baseline elements for informed consent in the telehealth context that will include:

1. Patient’s right to refuse to receive services via telehealth without it impacting their ability to receive other future health care services.
2. Validate and identify the provider’s credentials to the patient.
3. Provider must identify the patient and the patient’s location.
4. Provider must disclose any financial interests the provider has in the telemedicine application, technology or hardware.
5. Provider must inform the patient how to obtain follow-up care.
6. Provider must instruct the patient how to notify his/her PCP about the telemedicine consult to ensure patient can receive follow-up care.
7. Provider must describe how the patient can obtain records of the telehealth service.
8. Provider must disclose the types of communications and transmissions that are and are not permitted using telehealth technologies (eg. controlled substance prescriptions, prescription refills, appointment scheduling, patient education, etc.)
9. It is the physician who determines whether the condition being diagnosed and/or treated is appropriate for telemedicine.
10. Provider must ensure security measures in place related to use of telehealth technologies.
11. Provider must disclose potential privacy risks that exist, despite institution of security measures.
12. Provider must assert that he cannot guarantee consistent, uninterrupted performance of the technologies.

There is no specific process that must be followed to secure informed consent in Kansas, but most payors do require the consent to be secure before the visit for payment to be made for services rendered.
Additional inquiry for standard of care related to telemedicine includes: whether the physician was properly trained to use the telemedicine equipment and whether the physician used the equipment properly for the visit; whether the physician failed to utilize available telemedicine technology that could have prevented injury to the patient (ex. failing to use certain remote monitoring devices); whether the physician failed to make the appropriate determination regarding whether the telemedicine encounter was appropriate for the patient’s medical condition; whether the traditional medical encounter that would have been used was followed during the telemedicine visit; and if any telemedicine testing equipment was used, whether the telemedicine equipment met the prevailing technical standards.

It should also be noted that during the 2020 Special Session, the Kansas Legislature enrolled and presented to Governor Laura Kelly HB 2016, which was signed by Governor Kelly on June 8, 2020. Section 20 of HB 2016 provides, among other things, a change in the telemedicine standards. Specifically, although a physician would still have to conduct an assessment and evaluation of a patient’s current condition, Section 20 allows a physician to issue a prescription or order administration of medication, including a controlled substance, for a patient, without conducting an in-person examination of the patient. Even physicians under quarantine would be allowed to practice telemedicine. Section 20 of HB 2016 expires on January 26, 2021.
 
If you have questions on this topic or other legal medical matters, contact Gregory S. Young or Mark R. Maloney at 316.267.2000.