Health Law Monitor

UPDATED - Kentucky General Assembly Makes Healthcare Changes in Response to COVID-19

March 27, 2020

By: Chacey R. Malhouitre

On March 30, 2020, Governor Beshear signed Senate Bill 150, which addresses COVID-19 effects on the Commonwealth, specifically to allow for quick response by the healthcare system and protect those responding to the emergency. 

Here’s what you need to know:

• Telehealth, Section (4): Unless prohibited or limited by federal law, a provider who establishes a patient-provider relationship may provide healthcare services through telemedicine to a patient in Kentucky “at an appropriate site for both the provider and patient in compliance with HIPAA,” regardless of whether a pre-existing provider-patient relation was established prior to that time. “Such provider must have an active unencumbered license for a health care profession which is issued by another state, the District of Columbia, or a possession or territory of the United States and have never been subject to discipline by a licensing agency in any state or federal jurisdiction and never had their license or permit for controlled substances suspended or revoked. Such providers must register with the relevant state agency and only offer clinically appropriate, medically necessary services.”

Subject to certain limitations regarding reimbursement rates, insurers shall provide coverage for such services rendered to Kentucky insureds.

• Compliance with Executive Orders and Directives on Elective Surgeries, Section (5) (a): On March 23, 2020, the Governor of Kentucky issued an Executive Order directing providers in the Commonwealth to cease all elective medical procedures. Under SB 150, a provider will be deemed in compliance with any Executive Orders and directives from CHFS if the provider complies with recommendations from CMS on elective surgery and medical procedures and:

1. The provider, in his or her professional judgment, deems the procedure or service to be emergent (needed within 24 hours) or urgent (needed within 24 hours to 30 days); or 
2. A Kentucky-licensed physician orders a procedure or service provided by one of the following providers or facilities:

1. Physical therapists licensed under KRS Chapter 327;
2. Occupational therapists licensed under KRS Chapter 319A;
3. Speech-language pathologists licensed under KRS Chapter 334A;
4. Pain management facilities as defined in KRS 218A.175;
5. Alcohol and drug abuse treatment programs licensed under KRS Chapter 222;
6. Substance use disorder programs licensed as "Chemical Dependency Treatment Services" pursuant to KRS 216B.042.

• Liability Protection/Standard of Care, Section (5) (b):

1. Section (5) (b) Expands the standard of care and defense to civil liability for a provider who “in good faith renders care or treatment of a COVID-19 patient during the state of emergency . . . for ordinary negligence  for any personal injury resulting from said care or treatment, or from any act or failure to act in  providing or arranging further medical treatment, if the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same for similar  circumstances.”

2. Section (5) (b) further provides that the above defense to civil liability applies to a provider who:

1. Prescribes or dispenses medicines for off-label use to attempt to combat the COVID 19 virus, in accordance with the federal Right to Try Act, United States Public Law 115-176, and KRS 217.5401 to 217.5408;  
2. Provides health care services, upon the request of health care facilities or public health entities, that are outside of the provider's professional scope of practice; or  
3. Utilizes equipment or supplies outside of the product's normal use for medical practice and the provision of health care services.

• Limitations of Liability for Production of PPE, Section (10): Any business in the Commonwealth making PPE or other personal hygiene supplies (e.g., masks, gowns, sanitizer, etc.) related and in response to COVID-19 that does not normally make such products shall have a defense to ordinary negligence and product liability so long as the business has acted in good faith and in an ordinary, reasonable, and prudent manner under the same or similar circumstances.

• Medical Licensure, Section (13): In an effort to ensure medical providers are available to render care in the Commonwealth, this section permits the State Board of Medical Licensure, Board of Nursing, and Kentucky Board of Medical Services to “waive or modify state statues or administrative regulations relating to the respective professions over which each has jurisdiction:

1. For licensure or certification requirements for health care providers who are licensed or certified in other states to provide services in Kentucky;
2. To relax the scope of practice requirements to allow health care providers to practice in all settings of care;
3. To allow physicians to supervise a greater number of other health care providers and to do so using remote or telephonic means;
4. To allow for rapid certification or licensure and recertification or relicensure of health care providers;
5. To allow medical students to conduct triage, diagnose, and treat patients under the supervision of licensed health care providers;
6. For standards that are not necessary for the applicable standards of care to establish a patient-provider relationship, diagnose, and deliver treatment recommendations utilizing telehealth technologies; and
7. To reactivate the licenses of inactive and retired health care providers, including emergency medical providers and nurses, to allow them to re-enter the healthcare workforce.”

 

A copy of the final bill with the specific language implementing these measures can be found here.