GENERAL GOVERNMENT CABINET

Kentucky Board of Licensure and Certification for Dietitians and Nutritionists

(Amendment)

 

      201 KAR 33:070. Telehealth and telepractice.

 

      RELATES TO: KRS 310.070, 310.200

      STATUTORY AUTHORITY: KRS 310.200(1), (2)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 310.200 requires the Board of Licensure and Certification for Dietitians and Nutritionists to adopt administrative regulations to further the objectives stated therein. This administrative regulation establishes procedures necessary 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 dietitian and nutrition services, and in the provision of continuing education.

 

      Section 1. Definitions. (1) "Client" means the person receiving the services of the dietitian or nutritionist.

      (2) "Educator" means a presenter speaking to a group of individuals on a topic generally without a focus on the specific needs of any particular individual.

      (3) "Licensed healthcare professional" means a medical doctor, registered nurse, practical nurse, nurse practitioner, advanced practice registered nurse, physician’s assistant, chiropractor, certified diabetes educator, pharmacist, speech-language pathologist, registered dietitian, certified nutritionist, podiatrist, audiologist, or psychologist licensed in the jurisdiction where he or she is physically located.

      (4) "Practitioner" means a licensed dietitian or certified nutritionist.

      (5) "Telehealth" is defined by KRS 310.200(3).

      (6) "Telepractice" means the practice of dietetics or nutrition as defined by KRS 310.005(2) and provided by using communication technology that is two (2) way, interactive, simultaneous audio and video.

 

      Section 2. Client Requirements.[A practitioner-patient relationship shall not commence via telehealth. An initial, in-person meeting for the practitioner and patient who will prospectively utilize telehealth shall occur in order to evaluate if the potential or current client is a candidate to receive services via telehealth.] A licensed health care professional may represent the practitioner at the initial[, in-person] meeting. A practitioner who uses telehealth to deliver dietetics or nutrition services shall, at the initial[, in-person] meeting with the client:

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

      (2) Obtain alternative means of contacting the client other than electronically such as by the use of a telephone number or mailing address;

      (3) Provide to the client alternative means of contacting the licensee other than electronically such as by the use of a telephone number or mailing address;

      (4) Provide contact methods of alternative communication the practitioner shall use for emergency purposes such as an emergency on call telephone number;

      (5) Document if the client has the necessary knowledge and skills to benefit from the type of telepractice provided by the licensee; and

      (6) Inform the client in writing and document acknowledgement of the risk and limitations of:

      (a) The use of technology in the provision of telepractice;

      (b) The potential breach of confidentiality of information, or inadvertent access of protected health information, due to technology in the provision of telepractice;

      (c) The potential disruption of technology in the use of telepractice;

      (d) When and how the practitioner will respond to routine electronic messages;

      (e) In what circumstances the practitioner will use alternative communications for emergency purposes;

      (f) Who else may have access to client communications with the practitioner;

      (g) How communications shall be directed to a specific licensee;

      (h) How the practitioner stores electronic communications from the client; and

      (i) That the practitioner may elect to discontinue the provision of services through telehealth.

 

      Section 3. Competence, Limits on Practice, Maintenance, and Retention of Records. A practitioner using telehealth to deliver services or who telepractices shall:

      (1) Limit the telepractice to the area of competence in which proficiency has been gained through education, training, and experience;

      (2) Maintain current competency in telepractice through continuing education, consultation, or other procedures, in conformance with current standards of scientific and professional knowledge;

      (3) Document the client’s presenting problem, purpose, or diagnosis, and include which services were provided by telepractice;

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

      (5) Ensure that confidential communications obtained and stored electronically shall not be recovered and accessed by unauthorized persons when the licensee disposes of electronic equipment and data.

 

      Section 4. Compliance with Federal, State, and Local Law. (1) A practitioner using telehealth to deliver dietetics or nutrition services shall comply with Section 508 of the Rehabilitation Act, 29 U.S.C. 794(d), to make technology accessible to a client with a disability.

      (2) A person providing dietetic or nutrition services for which an exception to licensure does not apply or who represents himself or herself as a dietitian, licensed dietitian, or certified nutritionist pursuant to KRS 310.070 shall be licensed by the board if:

      (a) Services are offered via telehealth; and

      (b) These services are provided or the representation is made to a person when he or she is physically located in Kentucky.

      (3) A person providing dietetic or nutrition services for which an exception to licensure does not apply or who represents himself or herself as a dietitian, licensed dietitian, or certified nutritionist pursuant to KRS 310.070 shall be licensed by the board if:

      (a) Services are offered via telehealth; and

      (b) These services are provided or the representation is made from a physical location in Kentucky. This person may be subject to licensure requirements in other states where the services are received by the client.

      (4) No provision of this administrative regulation shall restrict the ability of educators to present on topics related to dietetics and nutrition pursuant to KRS 310.070(2)(d).

 

      Section 5. Representation of Services and Code of Conduct. A licensee using telehealth to deliver services or who telepractices shall not:

      (1) Engage in false, misleading, or deceptive advertising of telepractice; or

      (2) Split fees.

 

LORA ARNOLD PARKS, Chairperson

      APPROVED BY AGENCY: December 13, 2017

      FILED WITH LRC: December 13, 2017 at 10 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on January 23, 2018 at 10 a.m. Eastern Time at the Department of Professional Licensing, 911 Leawood Drive, Frankfort, Kentucky 40601. Individuals interested in being heard at this hearing shall notify this agency in writing by 5 workdays 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 wished 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 January 31, 2018. 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 J. Walls, Board Administrator, 911 Leawood Dr., Frankfort, Kentucky 40601, phone (502) 782-8814, fax (502) 696-5898, email kelly.walls@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Kelly J. Walls

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: The regulation establishes procedures for dietitians and nutritionists practicing telehealth.

      (b) The necessity of this administrative regulation: This regulation is necessary to establish procedures for dietitians and nutritionists practicing telehealth, which is required by KRS 310.200.

      (c) How this administrative regulation conforms to the content of the authorizing statues: The board is given the authority to establish administrative regulations for the practice of dietitians and nutritionists in KRS 310.041, and specifically for telehealth in KRS 310.200.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation establishes procedures for dietitians and nutritionists practicing telehealth.

      (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: The amendment removes the in-person requirement for the commencement of the practitioner-patient relationship.

      (b) The necessity of the amendment to this administrative regulation: The amendment is necessary to remove the in-person requirement for the commencement of the practitioner-patient relationship.

      (c) How the amendment conforms to the content of the authorizing statutes: KRS 310.200 requires the Board to promulgate regulations governing telehealth.

      (d) How the amendment will assist in the effective and administration of the statutes: The amendment will allow practitioner-patient relationships to commence without an in-person meeting.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: There are approximately 1,289 licensed dietitians and 45 dual license/certificate holders.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this 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 the administrative regulation or amendment: Dietitians and nutritionists will have to abide by the procedures governing telehealth.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): N/A

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Dietitians and nutritionists will be able to provide services via telehealth.

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

      (a) Initially: No new costs will be incurred by the changes.

      (b) On a continuing basis: No new costs will be incurred by the changes.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The board’s operation is funded by the fees paid by licensees and apprentice diabetes educators.

      (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 establishes any fees or directly or indirectly increases any fees: This administrative regulation did not establish the fees. The application fee is set in a separate regulation.

      (9) TIERING: Is tiering applied? Tiering was not applied because these requirements apply equally to all licensees.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, countries fire departments, or school districts) will be impacted by this administrative regulation? The Kentucky Board of Licensure and Certification for Dietitians and Nutritionists is housed for administrative purposes within the Department of Professional Licensing in the Public Protection Cabinet.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 310.041, 310.200

      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.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments or school districts) for the first year? N/A

      (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? N/A

      (c) How much will it cost to administer this program for the first year? N/A

      (d) How much will it cost to administer this program for subsequent years? N/A

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

      Revenues (+/-): N/A

      Expenditures (+/-): N/A

      Other Explanation: N/A