GENERAL GOVERNMENT CABINET

Board of Licensure for Occupational Therapy

(New Administrative Regulation)

 

††††† 201 KAR 28:235. Telehealth occupational therapy services.

 

††††† RELATES TO: KRS 319A.080, 319A.300

††††† STATUTORY AUTHORITY: KRS 319A.300

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 319A.300(2) requires the board to promulgate an administrative regulation to implement telehealth in occupational therapy, including to establish procedures to prevent abuse and fraud through the use of telehealth, prevent fee-splitting through the use of telehealth, and utilize telehealth in the provision of occupational therapy services and in the provision of continuing education. Additionally, KRS 319A.300(1) requires an occupational therapist utilizing telehealth to ensure a patientís informed consent and to maintain confidentiality. This administrative regulation establishes the requirements for telehealth for occupational therapy services.

 

††††† Section 1. Definitions. (1) "Telehealth is defined by KRS 319A.300(3).

††††† (2) "Telehealth occupational therapy" means the practice of occupational therapy as defined by KRS 319A.010(2), between the occupational therapist and the patient that is provided using:

††††† (a) An electronic communication technology; or

††††† (b) Two (2) way, interactive, simultaneous audio and video.

 

††††† Section 2. Client Requirements. A credential holder using telehealth to deliver occupational therapy services shall, upon initial contact with the client:

††††† (1) Make reasonable attempts to verify the identity of the client;

††††† (2) Obtain alternative means of contacting the client other than electronically;

††††† (3) Provide to the client alternative means of contacting the credential holder other than electronically;

††††† (4) Document if the client has the necessary knowledge and skills to benefit from the type of telehealth provided by the credential holder;

††††† (5) Use secure communications with clients, including encrypted text messages via e-mail or secure Web sites, and not use personal identifying information in non-secure communications and;

††††† (6) Inform the client in writing about:

††††† (a) The limitations of using technology in the provision of telehealth occupational therapy services;

††††† (b) Potential risks to confidentiality of information due to technology in the provision of telehealth occupational therapy services;

††††† (c) Potential risks of disruption in the use of telehealth occupational therapy services;

††††† (d) When and how the credential holder will respond to routine electronic messages;

††††† (e) In what circumstances the credential holder will use alternative communications for emergency purposes;

††††† (f) Who else may have access to client communications with the credential holder;

††††† (g) How communications can be directed to a specific credential holder and;

††††† (h) How the credential holder stores electronic communications from the client.

 

††††† Section 3. Competence, Limits on Practice, Maintenance, and Retention of Records. A credential holder using telehealth to deliver occupational therapy services or who practices telehealth occupational therapy shall:

††††† (1) Limit the practice of telehealth occupational therapy to the area of competence in which proficiency has been gained through education, training, and experience;

††††† (2) Maintain current competency in the practice of telehealth occupational therapy through continuing education, consultation, or other procedures, in conformance with current standards of scientific and professional knowledge;

††††† (3) Document the clientís presenting problem, purpose, or diagnosis;

††††† (4) Follow the record-keeping requirements of 201 KAR 28:140; and

††††† (5) Ensure that confidential communications obtained and stored electronically cannot be recovered and accessed by unauthorized persons when the credential holder disposes of electronic equipment and data.

 

††††† Section 4. Compliance with Federal, State, and Local Law. A credential holder using telehealth to deliver occupational therapy services or who practices telehealth occupational therapy shall comply with:

††††† (1) State law where the credential holder is credentialed and be licensed to practice occupational therapy where the client is domiciled or adhere to standards set forth in 201 KAR 28:030; and

††††† (2) Section 508 of the Rehabilitation Act, 29 U.S.C. 794(d), to make technology accessible to a client with disabilities.

 

††††† Section 5. Representation of Services and Code of Conduct. (1) A credential holder using telehealth to deliver occupational therapy services or who practices telehealth occupational therapy shall:

††††† (a) Not by or on behalf of the credential holder engage in false, misleading, or deceptive advertising of telehealth occupational therapy;

††††† (b) Comply with 201 KAR 28:140; and

††††† (c ) Not allow fee-splitting through the use of telehealth occupational therapy services.

††††† (2) Occupational therapy continuing competence educational processes established in 201 KAR 28:200, Section (3)(1), (2), (3), (5), (8), and (11), may occur through telehealth services.

 

RHONDA TAPP EDWARDS, COTA/L, Board Chair

††††† APPROVED BY AGENCY: June 13, 2017

††††† FILED WITH LRC: June 15, 2017 at 10 a.m.

††††† PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on July 21, 2017 at 9:00 a.m. (EST) at 911 Leawood Drive, Frankfort, Kentucky 40601. Individuals interested in being heard at this hearing shall notify this agency in writing five working days prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until 11:59 p.m. on July 31, 2017. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

††††† CONTACT PERSON: Kelly Walls, Board Administrator, Kentucky Board of Licensure for Occupational Therapy, PO Box 1360, Frankfort, Kentucky 40602, phone 502-782-8807, fax 502-696-3853 email Megan.Woodson@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Persons: Megan Woodson, 502/782-8807, Megan.Woodson@ky.gov.; Rhonda Tapp Edwards, 270-202-1701, Rhonda.Edwars@ky.gov.; and Kelly Walls

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation sets forth the requirements for licensees who use telehealth in delivering health care to patients.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to implement the requirements under KRS 319A.300 (2).

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of KRS 319A.300 (2).

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation implements the requirements of KRS 319A. 300.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: This is a new administrative regulation.

††††† (b) The necessity of the amendment to this administrative regulation: This is a new administrative regulation.

††††† (c) How the amendment conforms to the content of the authorizing statutes: This is a new administrative regulation.

††††† (d) How the amendment will assist in the effective administration of the statutes: This is a new administrative regulation.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation impacts all licensees regulated by KRS Chapter 319A.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Each licensee will have to adhere to the requirements of KRS 319A.300 that prohibits fee splitting and each licensee shall have to meet the requirements for clients, obtain competency in the use of telehealth, assure confidentiality, follow record keeping requirements of 201 KAR 28:140, and follow federal law requiring access for persons with disabilities.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The costs will vary and the licensee is not required to offer telehealth services.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question. All licensees will have the option of offering telehealth services to their patients.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: No additional costs are necessary to implement the changes made by this regulation.

††††† (b) On a continuing basis: No additional costs are necessary to implement the changes made by this regulation.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The fees for persons licensed under KRS 319A.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: No increase in fees or funding will be necessary to implement this administrative regulation.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish fees

††††† (9) TIERING: Is tiering applied? No tiering is applied because all licensees will be held to the same standards.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? Kentucky Board of Licensure for Occupational Therapy.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation: KRS 319A.300 (2).

††††† (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. None.

††††† (a) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. None.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

††††† (c) How much will it cost to administer this program for the first year? None.

††††† (d) How much will it cost to administer this program for subsequent years? None.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation: