Child Welfare Professionals

The American Academy of Pediatrics defines child welfare professionals as foster parents and kin caregivers, pediatricians, other physicians in medical specialties, child advocates, psychologists, and therapists. In Kansas, this definition can be expanded to Kansas Department for Children and Families (DCF) employees who conduct child protective service investigations, staff who support grantee organizations, staff members of the Kansas Protection Report Center, and case management and prevention services staff through grantees.

Child welfare professionals vary in their education level, employment, role within the system, and location. However, each professional is impacted by legislative requirements and DCF policies.

Barriers to the Workforce

In 2020, stakeholders reported various barriers that contribute to the current state of the workforce within Kansas’ child welfare system. Some of the common reasons stated for the high turnover rate of child welfare professionals are burnout, unmet needs, and lack of support.

A National Association of Social Workers (NASW) report on child welfare described challenges to recruitment and retention of child welfare professionals, including low salaries, high caseloads, administrative burdens, risk of violence, and inadequate supervision. Although salaries tend to increase with experience, many professionals do not stay in the child welfare system for an extended amount of time.

Many child welfare professionals spend more time on paperwork than with their clients; however, they do recognize that some paperwork is necessary. The number of cases per worker can range from 10 to 100 across the country; best practice recommends no more than 15 cases per caseworker. Additionally, child welfare supervisors often have their own caseload or manage a significant number of employees, which may leave employees without the support or guidance some professionals need.

Considerations

The Child Welfare League of America introduced the National Blueprint for Excellence in Child Welfare, which addresses workforce needs. Some of these needs include orientation and training programs, continuing education, annual performance evaluation, and reasonable workloads. Additionally, the Blueprint indicates employers should encourage self-care and provide wellness opportunities and stress management strategies.

During a presentation before the Special Committee in 2020, a representative of the Kansas chapter of the NASW suggested the State consider increasing recruitment and retention of child welfare professionals by offering financial incentives such as student loan forgiveness, tuition reimbursement, and free continuing education units. It was also recommended an annual survey be conducted to determine which incentives are utilized. The representative further recommended the State consider career readiness at the middle and high school level to introduce students to the profession, career paths within the system that provide opportunities for advancement, and field placement experiences to assist the tenure of the Kansas child welfare workforce. To assist with the unmet needs regionally, the representative recommended expansion of the Rural Opportunity Zone Student Loan Repayment Program to additional communities where there is a greater need of support. Other suggestions included ensuring professionals have a work-life balance, maintain the recommended caseload size of no more than 15 cases, and have access to supervisors and self-care in order to combat burnout, compassion fatigue, and secondary traumatic stress.

Legislative Changes

Beginning in 2019, Kansas enacted the following bills striving to positively impact the child welfare workforce.

In 2019, House Sub. for SB 25 (the appropriations bill) created 16 additional full-time equivalent (FTE) child welfare staff positions. DCF reported that these positions lowered caseloads for frontline child protective services staff and increased the efficiency of service delivery. Additionally, DCF made policy changes to decrease the supervisor-to-caseworker ratio across the state to be more in line with the Council on Accreditation best practices.

Also in 2019, SB 15 provided for licensure by reciprocity for social workers at baccalaureate, master’s, and specialist clinical levels and amended the requirements for licensure by reciprocity for other professions regulated by the Behavioral Sciences Regulatory Board (BSRB). Applicants who are deficient in the qualifications or in the quality of educational experience required for licensure are allowed to obtain provisional licenses to allow the applicants time to fulfill remedial or other requirements prescribed by the BSRB. For several professions, the bill amended provisions related to temporary licenses for applicants who have met all licensure requirements except for taking the required licensing examination. The bill also amended the licensure requirements for a specialist clinical social worker to reduce the number of hours of postgraduate supervised professional experience required.

In 2020, SB 66 (the appropriations bill) added $710,838 State General Fund (SGF) and 10.0 FTE positions for additional Protection and Prevention Services program staff for FY 2021 at DCF. The bill also added $7.5 million, including $3.8 million SGF, and 8.0 FTE positions for Family First Prevention Services Act services at the agency.

In 2021, Senate Sub. for HB 2208 was enacted. Among other things, this bill reduced the barriers to becoming a social worker by amending the licensure requirements to reduce the number of clinical hours required to become a licensed specialist clinical social worker.

In 2023, enacted Sub. for SB 131, among other things, changed licensure requirements for multiple professionals regulated by the BSRB, including reducing the number of months of practice prior to being eligible for reciprocity of license from 48 of the past 54 months to 12 months for a social worker; increased the months of validity to 24 months for a temporary license for both bachelor’s and master’s social workers; and added a definition for “extenuating circumstances” which may permit a current licensee an additional 3 months to complete continuing education requirements. The bill also reduced the number of continuing education hours after July 1, 2025, for certain licensees who diagnose and treat mental disorders.. The bill also permitted both the temporary reinstatement of an expired license and the issuance of temporary license for social work candidates for 24 months if they have completed their education at an education program undergoing accreditation. Additionally, the bill created a new community-based temporary license for multiple professionals including social workers who are employed by community mental health centers, federally qualified health centers, psychiatric residential treatment facilities, and private treatment facilities. The community-based temporary license is valid for 24 months, may not be renewed, and requires supervision by a BSRB-regulated professional who practices at an independent level.

by Amanda Prosser
Fiscal Analyst
785-296-7879

Family First Prevention Services Act

The federal Family First Prevention Services Act (FFPSA) was signed into law in 2018. FFPSA enables states to use funds under Title IV-E and Title IV-B of the Social Security Act (SSA) to provide enhanced support to children who are at risk of entering foster care. The bill authorizes federal reimbursement of prevention services for up to 12 months. The bill also includes new restrictions on federal reimbursement for children placed in a nonfoster home. The National Conference of State Legislatures (NCSL) provides a more detailed explanation of the FFPSA, which can be found here: https://www.ncsl.org/human-services/family-first-prevention-services-act.

State Requirements

States may use Title IV-E funding of FFPSA to provide prevention services to a child who is a “candidate for foster care,” meaning a child who is at imminent risk of entering foster care but who can remain safely in the child’s home as long as services or programs are provided, a child whose adoption or guardianship arrangement is at risk of disruption or dissolution (SSA Section 475(13)), a child in foster care who is pregnant or parenting foster youth (SSA Section 471(e)(2)(B)), or parents or kin caregivers (SSA Section 471(e)(1)). Funding may also be used if a child is placed with a parent who is in a licensed residential treatment facility for substance abuse (SSA Section 472(j)).

Services provided must be trauma-informed, evidence-based programs offered by qualified clinicians within the specific categories of mental health, substance use disorder treatment, kinship navigator, and parent skill-building. In order to receive federal reimbursement, the Title IV-E Prevention Services Clearinghouse must rate the prevention services as either “promising,” “supported,” or “well-supported.”

Any service provided must meet the following general practice requirements:

• The practice has a book, manual, or other available writings that specify the components of the practice protocol and describe how to administer the practice;
• There is no empirical basis suggesting the practice constitutes a risk of harm to those receiving it when compared with its likely benefits;
• If multiple outcome studies have been conducted, the overall weight of evidence supports the benefits of the practice;
• Outcome measures are reliable and valid, and are administrated consistently and accurately across all those receiving the practice; and
• There is no case data suggesting a risk of harm that was probably caused by the treatment and that was severe or frequent.

States are required to collect and report information regarding each child for whom, or on behalf of whom, mental health and substance abuse prevention and treatment services or in-home parent skills-based programs are provided. This information must include the specific services or programs provided, the duration of services, the child’s placement status at the beginning and at the end of the one-year period, and whether the child entered foster care within two years after being determined a candidate for foster care.

Federal Payments

Prevention services are reimbursable at 50.0 percent from federal fiscal year (FFY) 2020 to FFY 2026. This includes allowable administrative costs necessary for the proper and efficient administration of the state plan, in addition to training costs for personnel employed or preparing for employment by the state agency or local agency administering the plan. Beginning FFY 2027, prevention services will be reimbursable at the applicable Federal Medical Assistance Percentages (FMAP) rate. Additionally, at least 50.0 percent of the amount paid to a state in any fiscal year must be for prevention services that meet the well-supported practice criteria.

Maintenance of effort is required for foster care expenditures. States electing to provide Title IV-E prevention services and programs must maintain the same level of state foster care prevention expenditures each fiscal year as the expenditure amount in FFY 2014. States must report state foster care expenditures for each fiscal year that a state participates in the Title IV-E prevention program. State foster care prevention expenditures include Temporary Assistance for Needy Families (TANF), Title IV-B, Social Services Block Grant (SSBG), and any other state or local agency funds used for prevention services and activities (SSA Section 471(e)(7)).

Approved kinship navigator programs are eligible for Title IV-E payments so long as the program is operated in accordance with promising, supported, or well-supported practices.

Other Changes Made by FFPSA

Additional changes made by FFPSA include:

• Requiring states to report on steps taken to track and prevent child maltreatment death;
• Limiting foster care maintenance payments to two weeks for placements that are not foster homes or qualified residential treatment programs (QRTP). QRTPs must have a trauma-informed treatment model, registered or licensed nursing staff on-site to the extent the program’s treatment model requires, facilitate outreach to family members, document family integration into the treatment process, and provide discharge planning and family-based care support for six months after discharge (SSA Section 472(k)(4)). A trained professional or licensed clinician must complete an assessment for each child placed in a qualified residential treatment center to determine if the placement is appropriate. The assessment must determine the strengths and needs of the child using age-appropriate, evidence-based validated functional assessment tools approved by HHS. A state will only receive federal payments on behalf of the child in a qualified residential treatment facility if the assessment is completed within 30 days. Additionally, if the assessment determines the placement in the QRTP is no longer appropriate, the child returns home, or the child is placed in a foster home or adoptive placement, federal payments will only be made on behalf of the child during the period necessary to transition the child home or to a new placement. The state will not receive any federal payment after 30 days of the determination that the placement in the QRTP is no longer appropriate; and
• Redefining the term “foster family home” to mean the home of any individual or family that is licensed or approved by the state where the foster child resides, adheres to the reasonable and prudent parenting standard, provides 24-hour substitute care for the child, and provides care for no more than six foster children (with some exceptions for parenting youth, siblings, meaningful relationships with a family, and special training) (SSA Section 472(c)).

FFPSA also makes the following changes to Title IV-B funding:

• Eliminates the time limit for family reunification services while in foster care and permits time-limited family reunification services when a child returns home from foster care (SSA Section 431(a)(7));
• Requires states to implement an electronic interstate case processing system for children in foster care, guardianship, or adoption by 2026 (SSA Section 471(a)(25));
• Provides grants in FFY 2018 for states to develop the electronic interstate case processing system (SSA Section 437(b)); and
• Reauthorizes regional partnership grants that work to alleviate substance abuse and support parents for five years. These grants can be used on a statewide basis and can be awarded to both nonprofit and state programs (SSA Section 437(f)).

Kansas Families First

States that chose to provide Title IV-E prevention services were required to submit a Prevention Services and Programs five-year plan as part of the state’s Title IV-E plan (SSA Section 471(3)(5)). In Kansas, the plan was submitted by the Department for Children and Families. It can be accessed here: https://www.dcf.ks.gov/services/pps/pages/ffpsa.aspx. The Kansas Department for Children and Families has awarded Families First Prevention Service grants to 12 community partners and stakeholders that provide programs in communities statewide.

In addition to the plan, Kansas is required to have a well-designed and rigorous evaluation strategy. The KU School of Social Welfare and the KU Center for Public Partnerships and Research (CPPR) have partnered with the Kansas Department for Children and Families to evaluate the Families First Program in Kansas. The most recent report can be found here: https://socwel.ku.edu/family-first-prevention-services-act.

by Amanda Prosser
Fiscal Analyst
785-296-7879

Medicaid

Medicaid is a partnership between the federal government and the states with shared authority and financing, created by Congress in 1965 (Title XIX of the Social Security Act) alongside Medicare. The program was designed to jointly fund health care coverage for eligible low-income adults, children, pregnant women, elderly adults, and people with disabilities. Medicaid has become the nation’s largest source of funding to provide health services to low-income people. Medicaid is administered by states, according to federal requirements.

State participation in Medicaid is optional. However, the federal government’s financial share of Medicaid financing creates an incentive for the states. To date, no state has declined to participate. All 50 states, the District of Columbia, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands participate and administer their own Medicaid plans. Although all states participate, eligibility varies widely because the states can choose to cover additional people and services above and beyond the federal minimum requirements.

The Children’s Health Insurance Program (CHIP) was signed into law in 1997 and provides federal matching funds to states to provide health coverage to children in families with incomes too high to qualify for Medicaid, but who cannot afford private coverage.

KanCare

Kansas administers Medicaid through the program known as KanCare. The current KanCare contracts began in January 2013 and will end December 31, 2024. A request for proposal was announced October 2, 2023, for procurement of the next KanCare contract which will begin January 1, 2025. Some of the services provided under KanCare include doctor’s office visits, including wellness and sick; hospital care; pregnancy, birth, and newborn care; behavioral health services; prescription drug coverage; nursing facility services; mental health services; substance use disorder treatments; dental care; and contractor specific value-added services such as dental care, farmers market vouchers, and transportation assistance.

Historically, KanCare had around 415,000 members. However, during the Public Health Emergency (PHE) for COVID-19, states were not permitted to conduct their annual renewal reviews to determine eligibility. This resulted in members remaining in KanCare. The PHE ended in early 2023, and beginning in April 2023, the “unwinding” or a return to annual eligibility reviews was reinstated. Kansas will complete the renewal process for all members of KanCare over a 12-month period ending in March 2024. As of August 2023, KanCare beneficiaries for the calendar year totaled 496,402, which is a decrease from the same time period in 2022 which had 500,490 beneficiaries.

The Kansas Department of Health and Environment (KDHE) and the Kansas Department for Aging and Disability Services (KDADS) administer the KanCare program.

KDHE maintains financial management and contract oversight as the single state Medicaid agency. KDADS administers the Medicaid waiver programs for disability services, mental health, and substance abuse and operates the state hospitals and institutions. Kansas contracts with three managed care organizations (MCOs) to coordinate health care for nearly all Medicaid members. In June 2018, KDHE awarded contracts to Sunflower State Health Plan, UnitedHealthcare Community Plan of Kansas, and Aetna Better Health of Kansas, Inc., to serve as the State’s MCOs. These contracts began January 1, 2019, and were scheduled to end December 31, 2023; however, a one-year extension was granted and the contracts will now end December 31, 2024.

Each KanCare member is enrolled with one of the KanCare MCOs. Members have the option during the annual open enrollment period to select a different MCO or remain with their current MCO.

History of Home and Community Based Services

The federal government enacted Medicaid in 1965. Prior to Medicaid, states often housed individuals with mental health, intellectual, or developmental disabilities in large institutional settings. After the passage of Medicaid, and throughout the second half of the 20^th century and into the 21st century, states began to shift toward a model of care that prioritized home and community settings. In 1982, Kansas received authorization to start its Home and Community Based Services (HCBS) waiver program.

The Kansas Mental Health Reform Act of 1990 mandated that community mental health centers (CMHCs) serve as the primary points of entry into the mental health system, including state institutions. [Note: During the 2021 Legislature, a new certification for CMHCs was enacted – Certified Community Behavioral Health Clinics (CCBHCs). See memorandum The Differences between CMHCs and CCBHCs.]¹

In 1990, President George H. W. Bush signed into law the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. Title II of the ADA prohibits discrimination against individuals with disabilities by public entities, including state and local governments.

In 1999, the U.S. Supreme Court ruled in Olmstead v. L.C. 527 U.S. 581 (1999) that the ADA protected the right of individuals with mental disabilities to live in their community rather than institutional settings. The Court wrote that Title II of the ADA required states “to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”

In response to Olmstead, the Centers for Medicare and Medicaid Services (CMS) issued letters that stipulated states should take reasonable steps to accommodate individuals if treatment professionals determine an individual could live in a community setting with appropriate support services. In one of those letters, CMS also issued guidance that said states can limit the number of individuals who receive services under a HCBS waiver.

Types of Medicaid Waivers Approved by CMS

Sections 1115 and 1915(b) and (c) of the Social Security Act give the U.S. Secretary of Health and Human Services (HHS) authority to waive provisions of the law to encourage states to test new or existing ways to deliver and pay for health care services in Medicaid and the Children’s Health Insurance Program (CHIP). A state must apply for and receive approval from CMS in order to operate a waiver.

Section 1115 Experimental, Pilot, or Demonstration Projects

Section 1115 of the Social Security Act gives the Secretary of HHS authority to approve experimental, pilot, or demonstration projects that are found by the Secretary to be likely to assist in promoting the objectives of the Medicaid program. With a 1115 proposal, a state receives additional flexibility to design and improve their programs while demonstrating and evaluating state-specific policy approaches to better serve Medicaid populations. The proposal must be “budget neutral” or during the course of the project, federal Medicaid expenditures will not be more than federal spending without the demonstration. CMS policy requires the demonstration’s budget ceiling to be rebased using recent cost data and growth trends at every extension and will also limit carry-forward of accumulated savings from one approval period to the next. In general, Section 1115 waivers are approved for an initial five-year period and can be extended for an additional three to five years.

CMS performs a case-by-case review of each proposal to determine whether its stated objectives are aligned with those of Medicaid. CMS also considers whether proposed waiver and/or expenditure authorities are appropriate and consistent with federal policies, including the degree to which they supplant state-only costs for existing programs or services and can and should be supported through other federal and non-federal funding sources.

Kansas was initially approved December 27, 2012, with an effective date of January 1, 2013. The current expiration date is December 31, 2023. KDHE submitted a renewal of the State’s 1115 Waiver on December 28, 2022. Per CMS as of November 3, 2023, it remains pending.

Section 1915(c) Waivers

The HCBS waiver program is authorized under Section 1915(c) of the Social Security Act. Through the HCBS waiver program, a Medicaid beneficiary can receive a wide range of services designed to allow the individual to live in their home or community rather than receive institutionalized care. Section 1915(c) waivers must:

• Demonstrate that providing waiver services will not cost more than providing these services in an institution;
• Ensure the protection of people’s health and welfare;
• Provide adequate and reasonable provider standards to meet the needs of the target population; and
• Ensure that services follow an individualized and person-centered plan of care.

KanCare HCBS Waivers

KanCare allows the State to provide all HCBS through managed care by seven separate 1915(c) waivers. Under the HCBS waiver program, Kansas is able to waive certain Medicaid program requirements, allowing the state to provide supports and services for people who might not otherwise be eligible under Medicaid. Through the waivers, Kansas targets services to people who need long-term services and supports. Individuals receive services through individual providers, contracted through the MCOs. Providers are reimbursed through KanCare for their services.

The seven 1915(c) waivers are Autism (AU), Frail Elderly (FE), Intellectual and Developmental Disability (I/DD), Physical Disability (PD), Serious Emotional Disturbance (SED), Technology Assisted (TA), and Brain Injury (BI). KDADS regularly publishes the number of recipients of each waiver, as well as the AU, I/DD, and PD waitlists on its website.

KDADS has available an HCBS Access Guide that explains the process to apply for a waiver, as well as a HCBS Service Summary that highlights the services available for each waiver.

Eligibility

To be eligible for any HCBS waiver, the individual must be financially and functionally eligible for Medicaid. Individuals with income above the limitation per month must share in the cost of care, called the “client obligation,” which is paid by the client to a medical provider. The consumer’s share of cost (client obligation) is based on the consumer’s gross monthly income and the protected income limit (PIL) for the program. [Note: The PIL is a Medicaid eligibility pathway that enables individuals with income above the Medicaid limit to become HCBS eligible.] Deductions, income allocation, and expenses may be applied to reduce the share of cost. If the consumer’s income is over 300 percent of the SSI (Supplemental Security Income) one person standard, the cost of care or cost of services for the consumer must be higher than the share of cost or the consumer may be reviewed for a different program.

Autism Waiver

The AU waiver provides intensive early intervention treatment to children with autism and respite for their primary caregivers for children up to age six who have been diagnosed with autism spectrum disorder, Asperger’s syndrome, or a pervasive developmental disorder not otherwise specified.

As of October 13, 2023, 67 individuals were eligible to receive services under the AU waiver, and 524 were proposed recipients of the waiver as of September 30, 2023.

Frail Elderly Waiver

The FE waiver provides services to Kansas seniors as an alternative to nursing facility care. Services include personal care, household tasks, and health services. The program promotes independence within the community and helps to offer residency in the most integrated environment. The waiver is for people who are at least 65 years of age and meet requirements for long-term care. The FE waiver has approximately 12 service categories, which generally represent various personal care services and life management services. Services vary in reimbursement frequency and range from 15-minute increments for personal care services to once-a-month for more specialized services. As of October 13, 2023, 7,052 individuals were eligible to receive services under the FE waiver.

Intellectual/Developmental Disability Waiver

The I/DD waiver serves people with intellectual and/or developmental disabilities. Services are designed to help people with I/DD maintain their physical and mental health in their home and community. People age five or older who have an I/DD or are eligible for care in an intermediate care facility for individuals with developmental disability may be eligible for the I/DD waiver. In general, those with intellectual disabilities may be eligible if they have a diagnosed intellectual disability resulting in impaired function in at least two adaptive skills areas. Those with a developmental disability may be eligible if their disability started before age 22 and they have a substantial limitation 3 areas of life functioning.

Services for the I/DD waiver are divided into approximately 14 service categories, which generally represent various personal care services and life management services. Services vary in reimbursement frequency and range from 15-minute increments for personal care services to once-a-month for more specialized services. As of October 13, 2023, 8,902 individuals were eligible to receive services under the I/DD waiver, and 5,137 were on the waiver waitlist.

Physical Disability Waiver

The PD waiver serves people ages 16 to 64 who meet the level-of-care criteria for nursing facility placement, need assistance to accomplish the normal tasks of daily life, and have been determined disabled by the Social Security Administration. The PD waiver has 7 service categories, which generally represent personal care and life management services. Services vary in reimbursement frequency and range from 15-minute increments for personal care services to once-a-month for more specialized services. As of October 13, 2023, 6,100 individuals were eligible to receive services under the PD waiver, and 2,352 were on the waiver waitlist.

Serious Emotional Disturbance Waiver

The SED waiver provides children who have some mental health conditions with special intensive support so they may remain in their homes and communities. The waiver is for individuals ages 4 to 18 who have a diagnosed mental health condition that substantially disrupts their ability to function socially, academically, and/or emotionally and are at risk of inpatient treatment. The SED waiver has approximately six service categories, which representvarious therapy types and short-term respite care. As of October 13, 2023, 3,306 individuals were eligible to receive services under the SED waiver.

Technology Assisted Waiver

The TA waiver provides community-based services to people through age 21 who require substantial and ongoing daily care comparable to the care provided in a hospital. The TA waiver has approximately seven service categories, which represent various attendant care services. As of October 13, 2023, 774 individuals were eligible to receive services under the TA waiver.

Brain Injury Waiver

The BI waiver provides services for people who have an acquired or traumatic brain injury to ensure they can stay in their homes and be as independent as possible in a safe, healthy environment. The BI waiver is for people ages 0 to 65 who have a brain injury that has caused temporary or permanent impairment to their behavioral, cognitive, or physical functions and would otherwise require institutionalization in a rehabilitation facility. The BI waiver has approximately nine service categories, which generally represent various personal care services and life management services. Services vary in reimbursement frequency and range from 15-minute increments for personal care services to once-a-month for more specialized services. As of October 13, 2023, 965 Kansans were eligible to receives services under the BI waiver.

Recent Changes to HCBS Provider Reimbursement Rates

Appropriation highlights may be found in the Kansas Legislative Research Department’s annual publication “Fiscal Facts.” In recent years, multiple rate increases have been appropriated for various HCBS waivers.

During the 2023 Session, the Legislature:

• Added $17.7 million, including $7.1 million from the State General Fund (SGF), to standardize rates across waivers for FY 2023 to match the FE waiver rate increase approved by the 2022 Legislature;
• Added $13.0 million, including $5.2 million SGF, to increase the HCBS FE waiver reimbursement rates by 10.0 percent for FY 2024;
• Added $11.2 million, including $4.5 million SGF, to increase the Targeted Case Management (TCM) rate for individuals with I/DD from $43.24 per hour to $75.00 per hour for FY 2024;
• Added $9.3 million, including $3.8 million SGF, to increase the traumatic brain injury rehabilitation facility rates from $700 per day to $1,400 per day for FY 2024; and
• Added language requiring the agency to submit to CMS an application for a community support waiver for individuals with I/DD for FY 2024.

1. https://klrd.gov/2023/11/30/community-mental-health-centers-and-certified-behavioral-health-clinics/ ↩︎

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

State Hospitals and Institutions

Oversight

The Kansas Department for Aging and Disability Services (KDADS) is responsible for the administration of state-owned and -contracted facilities. The Kansas Department for Health and Environment (KDHE) licenses the facilities. Oversight and certification are provided by the federal Centers for Medicare and Medicaid Services (CMS).

State Mental Health Hospitals (SMHH)

Osawatomie State Hospital (OSH) was established in 1855. OSH provides services to adults diagnosed with psychiatric disorders, regardless of ability to pay or legal status.

Larned State Hospital (LSH) was established in 1914. LSH is the largest psychiatric facility in Kansas, serving the western two-thirds of the state. LSH provides services to adults with serious and persistent mental illnesses, most of whom have been deemed a danger to themselves or others. LSH also houses the Sexual Predator Treatment Program (SPTP), established in 1994. [See State Hospitals]

Since 2015, OSH and LSH have been the only SMHHs. OSH and LSH generally serve Kansans who require longer-term inpatient acute care. The Care and Treatment Act for Mentally Ill Persons (KSA 59-2945 et seq.) provides definitions and guidance for admission to the state hospitals.

Regional State Hospital Project

The 2022 Special Committee on Mental Health Beds recommended that $15 million from the State General Fund (SGF) be released to construct a facility for up to 50 inpatient beds in the Sedgwick County area. The State Finance Council released the $15 million to KDADS on December 21, 2022. Additionally, $25 million from the Strengthening People and Revitalizing Kansas (SPARK) fund was awarded to Sedgwick County for construction costs. The project is for 25 beds for forensic competency evaluations and restorations and 25 beds for acute inpatient psychiatric care, with consideration of expanding to 100 total beds. On August 28, 2023, Governor Kelly issued Executive Order 23-05, which created a 14-member panel to gather public input and make recommendations about the proposed hospital building.

The South Central Regional Psychiatric Hospital Advisory Panel is charged with gathering public input on needs and location of a regional state psychiatric hospital, including how a state hospital would fit with existing services in Sedgwick County, and researching existing resources, gaps in services, and barriers to care to improve access and delivery of services in south central Kansas.

State Institutional Alternative (SIA)

In 2020, a new provider classification, State Institutional Alternatives (SIAs), was developed by KDADS and KDHE in response to lifting the moratorium on admissions at OSH to expand regional capacity for adults and youth who meet the criteria for state hospital admissions.

SIAs are private psychiatric hospitals or community hospitals that agree to accept patients with mental illness who have been screened for admission to a state hospital. These SIA hospitals are paid a per diem rate for each patient day instead of the regular Medicaid rate. SIAs submit an application to the State to be able to enroll in Medicaid and be reimbursed on a per diem rate for any patients successfully screened for SMHH admission, and they receive state funds for the care of the uninsured.

SIAs provide regional hospital alternatives to LSH and OSH, allowing for care closer to home for patients and reducing demand on SMHHs, as well as reducing wait times for admissions. As of October 2023, there are ten contracted SIA facilities with seven facilities currently admitting a mix of geriatric, youth, and adult populations.¹

Residential Treatment, Training, and Care

The State of Kansas operates two residential treatment, training, and care facilities for individuals with intellectual disabilities. Primary funding for these facilities is from CMS.

Parsons State Hospital and Training Center (PSH&TC) was opened in 1903. PSH&TC serves adult and youth individuals with intellectual and developmental disabilities whose circumstances require specialized residential service provisions. Certification as a Hospital is from the Kansas Hospital Association as a Special Mental Hospital and by the State Department of Education as a Special Purpose School.

Kansas Neurological Institute (KNI) was established in 1959. KNI provides both a treatment center and residence for adults with intellectual and developmental disabilities who require a high level of ongoing support. Many residents require intensive physical and medical supports; about one-third are unable to eat by mouth and receive their nutrition through feeding tubes. Services from KNI, including outreach services, must be requested and approved through the Community Developmental Disability Organization (CDDO) for the county in which the person lives and must be services that cannot be provided or arranged through the community services system.

Community Inpatient and Structured Care

Community inpatient care and structured care environments are the two levels directly below the state hospitals on the adult continuum of care. Structured care environments include crisis stabilization services, nursing facilities for mental health, residential care facilities, sobering beds, and social detox beds. Community inpatient care includes crisis intervention, community inpatient psychiatric beds, medical detox beds, and substance use disorder treatment.

In 2017, the Kansas Legislature enacted the Crisis Intervention Act, which allows adults to stay involuntarily in crisis intervention centers for up to 72 hours for emergency evaluation and treatment. The Crisis Intervention Act also requires a center to file an affidavit with the district court within 48 hours of admission if the patient meets the criteria to be retained. Crisis intervention centers must discharge the patient if they no longer meet the criteria or if 72 hours has passed since admission. For more information on the Crisis Intervention Act and associated issues, see the article on Mental Health and the Criminal Justice System.

Kansas also has six established crisis stabilization centers located in Kansas City, Topeka, Wichita, Salina, Manhattan, and Hays. Crisis stabilization centers provide the highest level of care, and the beds are traditionally filled with individuals who pose an immediate risk to themselves or others and are receiving treatment voluntarily. These centers provide patients short-term mental health crisis care of less than 72 hours before they can transition to community-based care. Crisis stabilization is not traditionally provided in hospitals, but it can be an alternative to psychiatric hospitalization.

Community-Based Care

Community Mental Health Centers

In 1963, President John F. Kennedy signed the Community Mental Health Act, which led to the establishment of Community Mental Health Centers (CMHCs) across the nation. The Kansas Mental Health Reform Act of 1990 initiated the state’s transition from institutional to community-based mental health care. The Kansas Mental Health Reform Act deemed that Kansas residents in need of mental health services should receive the least restrictive treatment and the most appropriate community-based care through coordination between CMHCs and state hospitals.

Since 1990, CMHCs have served as the primary points of entry into the mental health system. CMHCs are mental health facilities that are statutorily identified to provide community-based public mental health services. CMHCs provide outpatient services to adults and children, as well as behavioral health screening for patients. CMHCs are subject to licensure and must also conform to CMS standards and audits. The 26 CMHCs in Kansas also serve as the gatekeepers for admission to state mental health hospitals. KDADS maintains a directory of CMHCs in their Directory of Mental Health Resources in Kansas. As more patients have used community-based services, the need for state hospital beds has declined.²

Kansas has 26 CMHCs that primarily serve adults with severe and persistent mental illness, children and adolescents with severe emotional disturbance, and other individuals at risk of requiring institutional care. Anyone experiencing a mental health crisis who lacks a mental illness diagnosis can seek treatment at a CMHC.³ According to KDADS, CMHCs offer “comprehensive mental health rehabilitation services, such as psychosocial rehabilitation, community psychiatric support and treatment, peer support, case management, and attendant care.”⁴

Certified Community Behavioral Health Clinics

Certified Community Behavioral Health Clinics (CCBHCs) are defined by the National Council for Mental Wellbeing as “a specially-designated clinic that provides a comprehensive range of mental health and substance use services.”⁵ CCBHCs are Medicaid provider clinics and are required to meet certain requirements in order to earn certification, which include providing evidence-based practices to their clients, as well as serving the “whole person.”

Generally, a CCBHC is required to provide a certain set of core services. These include, but are not limited to:

• Person-centered and family-centered care;
• Crisis services;
• Outpatient mental health and substance use services; and
• Screening, assessment, diagnosis, and risk assessment.

Currently, there are 20 CCBHCs certified in Kansas, with six more scheduled to be certified in state fiscal year (SFY) 2025. In July 2024, KDADS announced it had received a CCBHC Demonstration Grant. [Note: A CCBHC may also be a CMHC.]

Mental Health Intervention Team Grant

The Mental Health Intervention Team (MHIT) Grant is administered by the Kansas State Department of Education to help break down barriers in place for youth to receive mental health services. The MHIT focuses on K–12 students and their families by identifying students, helping families navigate mental health services, and linking them to the existing statewide behavioral health system and resources within the Mental Health Providers network. Additionally, the MHIT focuses additional resources on foster students in need of mental health services. The program consists of liaisons who “bridge” sharing educationally appropriate information with providers and classrooms, help families navigate waivers and paperwork, and schedule services. Communication between the mental health professional and school is permitted through both a memorandum of understanding (MOU) and, if the parent agrees, a release.

The MHIT Grant has been funded through a proviso bill beginning in 2018; 75 percent of funding goes to liaison salaries and benefits, and 25 percent of the total request flows through the school district to the CMHC. The MHIT began in 9 districts servicing 1,708 students in the 2018–2019 school year. In the 2022–2023 school year, the MHIT was in 66 districts, served 6,014 students including 552 foster students, and had 150 liaisons. For the 2023–2024 school year, 90 school districts applied, which included 24 new districts, and 182 liaisons are anticipated to participate.⁶

Suicide Prevention

Kansas Youth Suicide Prevention Coordinator

Among the provisions in 2019 HB 2290 was the creation of the position of Kansas Youth Suicide Prevention Coordinator within the Office of the Attorney General. The Office of the Attorney General, in partnership with The Jason Foundation, has developed the “Kansas – A Friend AsKS” app, which is a free smartphone app that provides information, tools, and resources to help an individual who may be struggling with thoughts of suicide.

Kansas Department of Health and Environment (KDHE)

In August 2020, KDHE was awarded a Zero Suicide in Health Care Systems grant from the Substance Abuse and Mental Health Services Administration (SAMHSA). It is a five-year, $700,000-per-year grant, and it was the first of its kind for KDHE. The target audience for the grant is adults 25 years and older, and the activities of the grant are developed in accordance with the Zero Suicide Framework. KDHE publishes the Kansas Suicide-Related Data Dashboard on their website.

Kansas Department for Aging and Disability Services (KDADS)

988 Suicide Prevention and Mental Health Crisis Hotline

KSA 75-5964 through 75-5971 established the Living, Investing in Values and Ending Suicide (LIVES) Act, which laid the groundwork for implementation of 988 Suicide Prevention and Mental Health Crisis Hotline in Kansas. Kansas has a network of four 988 Contact Centers that provide coverage for Kansans, and a fifth is under development as of August 2023.

Suicide Prevention Coordinators

KDADS secured a five-year Garrett Lee Smith Youth Suicide Prevention Grant in 2023 that will help fund suicide prevention programs in Wyandotte and southeast Kansas counties. Additionally, the grant includes a federally funded full-time equivalent (FTE) position for a grant coordinator. KDADS also has a dedicated FTE for a State Suicide Prevention Coordinator that is state funded.

Kansas Suicide Prevention Plan

The Kansas Suicide Prevention Plan (2021–2025) outlines the activities and responsibilities necessary to accomplish suicide prevention goals and objectives across the lifespan. The primary purpose of this State Suicide Prevention Plan is to reduce death by suicide in Kansas. This plan will be renewed every five years, with reviews occurring at least annually, as needed, and based on any significant changes in data or resources.

Youth-Only Services

Youth have access to several mental health treatment options throughout the state. Options include psychiatric residential treatment facilities (PRTFs), the Medicaid Home and Community Based Services (HCBS) waiver for Serious Emotional Disturbance, and Professional Resource Family Care. Each option is detailed in more depth below.

Psychiatric Residential Treatment Facilities (PRTFs)

PRTFs provide out-of-home residential psychiatric treatment to children and adolescents whose mental health needs cannot be effectively and safely met in a community setting. These programs are intended to provide active treatment in a structured therapeutic environment for children and youth with significant functional impairments resulting from an identified mental health diagnoses, substance use diagnoses, sexual abuse disorders, or mental health diagnoses with co-occurring disorders (i.e., substance-related disorders, intellectual and developmental disabilities, head injury, sexual misuse disorders, or other disabilities that may require stabilization of mental health issues).

The residential treatment facility is expected to work actively with the family and other agencies to offer strengths-based, culturally competent, trauma-informed, medically appropriate treatment designed to meet the individual needs of the residents.

There are currently nine PRTFs in the State of Kansas, all overseen by KDADS. A list of current PRTFs is available on the KDADS website in their Directory of Mental Health Resources in Kansas.

Medicaid Home and Community Based Services (HCBS) Serious Emotional Disturbance Waiver

The Serious Emotional Disturbance (SED) waiver is for children 4 to 18 years of age who have a diagnosed mental health condition that substantially disrupts their ability to function socially, academically, or emotionally; are at risk of inpatient psychiatric treatment; meet medical assessment criteria; and are financially eligible for Medicaid. The application is completed through a local CMHC.

Services and supports under the SED waiver may include attendant care, independent living and skills building, short-term respite care, parent support and training, professional resource family care, and wraparound facilitation. As of October 13, 2023, KDADS reported there were 3,306 participants eligible to receive HCBS SED waiver services.⁷

Funding for Mental Health Services

CMHCs

Medicaid provides the largest source of state funding for community-based mental health services. CMHCs use certified Medicaid match funds to provide services for children with SED, children referred to CMHCs by children and family service contractors, and all other children and adults who are Medicaid eligible. Medicaid covers targeted case management, comprehensive medication services, personal care services, pre-admission screens, activity therapy, group and individual psychotherapy, training and educational services, crisis intervention, community transition, and respite care. [Note: The current KanCare Contract ends in December 2024. The procurement process for KanCare began October 2, 2023, with the issuance of a request for proposal, and the new KanCare Managed Care Organization contracts will begin January 1, 2025. It is unknown at this time how services will be impacted.]

Additional details on the CMHC and CCBHC changes are available in the KLRD memorandum on Differences between CMHCs and CCBHCs, which includes funding details.⁸

Crisis Stabilization Services

Crisis stabilization services are funded with 75 percent of revenue from Kansas Lottery vending machines. Additionally, COMCARE (Wichita), Valeo (Topeka), and RSI (Kansas City) receive funding independent of the Lottery vending machine revenue.

Family First Prevention Services Act

In 2018, President Trump signed into law the Family First Prevention Services Act, which encourages the maintenance of families to preempt a child’s entrance into the foster care system. The Act allows for federal reimbursement for mental health services, substance use treatment, and in-home parenting skills training.

Appropriations for SFY 2024

The annual KLRD publication Kansas Fiscal Facts includes a budget overview for Human Services as well as Session Highlights.

1. https://kdads.ks.gov/state-hospitals-and-institutions/state-institution-alternatives-(sias) ↩︎
2. 2018 Mental Health Task Force Report ↩︎
3. According to the National Alliance on Mental Illness, a “mental health crisis is any situation in which a person’s behavior puts them at risk of hurting themselves or others and/or prevents them from being able to care for themselves or function effectively in the community.” ↩︎
4. https://kdads.ks.gov/kdads-commissions/behavioral-health/community-mental-health-centers ↩︎
5. https://www.thenationalcouncil.org/program/ccbhc-success-center/ccbhc-overview/ ↩︎
6. Kansas State Department of Education testimony to the 2023 Special Committee on Mental Health ↩︎
7. https://kdads.ks.gov/kdads-commissions/long-term-services-supports/home-community-based-services-(hcbs)-programs (updated monthly) ↩︎
8. https://klrd.gov/2023/11/30/community-mental-health-centers-and-certified-behavioral-health-clinics/ ↩︎

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

Background

During the 2021 Session, the Legislature passed Senate Sub. for HB 2208, which included a requirement for the Kansas Department for Aging and Disability Services (KDADS) to establish a certification process for certified community behavioral health clinics (CCBHCs), a Medicaid provider type, and complete the transition to the CCBHC model by SFY 2025.

KDADS certified six CCBHCs in SFY 2022, three in SFY 2023, 11 in SFY 2024, and has six planned in SFY 2025. Currently, 20 of the planned 26 CCBHCs are certified in Kansas.

Community Mental Health Centers

Community Mental Health Centers (CMHCs) are mental health facilities that are statutorily identified to provide community-based public mental health services, and largely serve as the main entry points for the mental health system. CMHCs provide outpatient services to adults and children, as well as behavioral health screening for patients. The 26 CMHCs in Kansas also serve as the gatekeepers for admission to state mental health hospitals. KDADS maintains a directory of CMHCs.¹

Currently, a CMHC bills and will receive reimbursement for each different service it provides. That reimbursement rate covers the cost for the provider to provide that service and does not cover any administrative costs the CMHC might have. This type of funding is known as the “service reimbursement model.”

KDADS has indicated that the service reimbursement model can place a CMHC in a situation where it might not be able to provide more-intensive services. Due to reimbursement the CMHC might receive for certain services, and how frequently the services are utilized, this could reduce the services offered in certain areas, such as the western part of the state.

Certified Community Behavioral Health Clinics

Certified Community Behavioral Health Clinics (CCBHCs) are defined by the National Council on Mental Wellbeing as “a specially-designated clinic that provides a comprehensive range of mental health and substance use services.”² CCBHCs are Medicaid provider type clinics and are required to meet certain requirements in order to earn certification, which includes providing evidence-based practices to their clients, as well as serving the “whole person.”

Generally, a CCBHC is required to provide a certain set of core services. These include, but are not limited to:

• Person-centered and family-centered care;
• Crisis services;
• Outpatient mental health and substance use services; and
• Screening, assessment, and diagnosis, and risk assessment.

Currently, there are 20 CCBHCs certified in Kansas, with six more scheduled to be certified in SFY 25. In July 2024, KDADS announced it had received a CCBHC Demonstration Grant. [Note: A CCBHC may also be a CMHC.]

A CCBHC is funded using a Prospective Payment System (PPS) rate. The Kansas Department of Health and Environment (KDHE) developed the PPS rate, and it was approved by the federal Centers for Medicare and Medicaid Services. The Kansas state plan amendments by KDADS and KDHE were also approved.

The PPS rate is a cost-based payment methodology in which the Medicaid payment is based on a predetermined, fixed amount. It is calculated as:

Annual Allowable Costs	=PPS Rate
Annual Daily Visits

Phased Plan for CCBHC Implementation

During the 2021 Legislative Session, KDADS indicated it would implement a phased approach to certify CCBHCs. Its plan would begin in FY 2022 and continue through FY 2025.

IMPLEMENTATION OF CCBHC CERTIFICATION
	All Funds			SGF			Number of CCBHCs
FY 2022 Actuals	$	6,537,076		$	2,206,917		6
FY 2023 Approved	$	58,833,683		$	22,706,918		9
FY 2024 Approved	$	88,584,619		$	33,954,484		26
TOTAL	$	153,955,378		$	58,865,319		26

1. https://kdads.ks.gov/kdads-commissions/behavioral-health/community-mental-health-centers ↩︎
2. https://www.thenationalcouncil.org/program/ccbhc-success-center/ccbhc-overview/ ↩︎

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, jointly referred to as the Affordable Care Act (ACA), passed in March 2010, included a section that addressed the expansion of the Medicaid program. This historical memorandum is a synopsis of the ACA as to Medicaid Expansion and the immediate impact of the U.S. Supreme Court decision through federal fiscal year (FFY) 2013. The memorandum does not address the current status of Medicaid expansion adoption in states.

Medicaid Expansion

Eligibility Requirements

To participate in Medicaid, states are required by federal law to cover the following groups: pregnant women and children under the age of six with family incomes below 133 percent of the federal poverty level (FPL), children ages six through 18 with family incomes at or below 100 percent of the FPL, parents and caretaker relatives who meet certain financial eligibility guidelines, and elderly and disabled individuals who qualify for Supplemental Security Income benefits as a result of low income and resources.

Expanded Eligibility for New Group

The Medicaid expansion for adults, scheduled to commence on January 1, 2014, in conjunction with the health insurance exchange, was structured to extend Medicaid coverage to a newly eligible group consisting of nearly all non-disabled adults under the age of 65 whose household income fell at or below 133 percent of the FPL with a variance of plus or minus 5 percent. Under the 2013 FPL, a family of four making $31,322 and an individual making $15,282 would be at 133 percent of the FPL. A family of four making $32,499 and an individual making $15,856 would be at 138 percent of the FPL.

Federal Government Funding

Under the ACA provisions, states were required to participate in the Medicaid expansion for the newly eligible group or risk losing all Medicaid funding. Instead of providing federal matching funds to states to provide Medicaid-covered services to the new group under the existing federal share structure, known as the Federal Medical Assistance Percentage (FMAP), the federal government would cover 100 percent of the states’ costs for the newly expanded group from 2014 through 2016, and gradually reduce the federal share to 90 percent in 2020 and after.

The provisions of the federal Medicaid Act that grant authority to the Secretary of the Department of Health and Human Services (HHS) to withhold all or part of a state’s federal matching funds for non-compliance with federal requirements were unchanged by the ACA.

Court Challenge to Medicaid Expansion

In Florida v. HHS, 26 states, several individuals, and the National Federation of Independent Business (NFIB) brought suit in Federal District Court challenging the Medicaid expansion and the constitutionality of the individual mandate. At least 25 other cases were filed in federal district courts, but only in the Florida case did the petitioners assert that the ACA’s Medicaid expansion was “unconstitutionally coercive.” Both the Florida Federal District Court and the 11th Circuit Court of Appeals upheld the Medicaid expansion provision. The 11th Circuit’s decision stated states have a choice to participate in the Medicaid program, and the Medicaid expansion was within Congress’ spending clause power to impose conditions on its grants to states. The case reached the U.S. Supreme Court, which heard oral arguments in the case on March 26, 27, and 28, 2012. The Supreme Court’s decision in the case is cited as National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 132 S. Ct. 2566 (2012).

Arguments Before Supreme Court

Among the four issues addressed by the Supreme Court was whether Congress unconstitutionally coerced states into expanding the Medicaid program by threatening to withhold states’ federal funding.

The state petitioners argued Medicaid expansion was coercive because the states felt the need to participate in the program due to the importance of Medicaid funding and would then be required to comply with the new expansion requirements. The states asserted Congress may not coerce states to adopt policies through the Spending Clause of the Constitution when Congress does not have power to force states to do so directly. The state petitioners argued that limits should be placed and enforced on Congress’ spending power to protect state sovereignty and restore the balance of power between Congress and the states. The states stressed the Medicaid expansion was unprecedented because Congress had never mandated what they believed was an across-the-board Medicaid financial eligibility floor.

In the Supreme Court case, the federal government argued Congress has the authority to place conditions on the receipt of federal funds by the power granted under the Spending Clause of the Constitution. Further, the federal government argued the Supreme Court has recognized Congress’ power to attach conditions on the receipt of federal funds disbursed under its spending power. The federal government also argued the federal Medicaid statute has contained mandatory coverage requirements for participating states and Congress previously has required states to cover new categories of individuals.

Summary of State Options for Medicaid Ruling

The U.S. Supreme Court upheld nearly all of the ACA, affirming the law’s mandate that most everyone carry insurance, but striking down a provision that would have allowed the federal government to withhold all Medicaid funds to any state that did not comply with the new Medicaid eligibility requirements.

Section 1396c of the Medicaid Act provided that if a state’s Medicaid plan did not comply with the Act’s requirements, the Secretary of Health and Human Services could declare that “further payments will not be made to the State.”¹ A state that opted out of the Affordable Care Act’s expansion in health care coverage stood to lose all of its Medicaid funding. Section 1396c gave the Secretary of Health and Human Services the authority to withhold all “further [Medicaid] payments… to the State” if it was determined that the state was out of compliance with any Medicaid requirement, including those contained in the expansion.²

A majority of the justices voted that the government could not compel states to expand Medicaid by threatening to withhold federal money to existing Medicaid programs stating “When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.”³And “[T]he Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”⁴

The expansion is valid, however, if the penalty is limited to the loss of new funds. The ACA’s provision withholding all Medicaid funding from any state that did not agree was unconstitutionally coercive on the states stating “The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”⁵

Congress had not revised an existing program but essentially created a whole new one, and therefore was not entitled to withhold longstanding funding for states that would not go along with the changes stating “[T]he manner in which the expansion is structured indicates that while Congress may have styled the expansion a mere alteration of existing Medicaid, it recognized it was enlisting the States in a new health care program.”⁶

The Court ruling limited the Medicaid expansion provisions, but did not invalidate them. The Medicaid expansion is now optional for states, and states will no longer be required to implement those provisions stating “Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”⁷

The Court upheld the ACA’s major expansion of the joint federal-state Medicaid health insurance program but limited the possible penalty for states that opt to forgo expansion provisions outlined in the law stating “The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion. As a practical matter, that means States may now choose to reject the expansion; that is the whole point.”⁸

According to Kaiser Health News, the Court’s ruling on Medicaid funding took away one of the federal government’s primary inducements to get states to participate in its expanded health coverage for low-income people. The ACA would have allowed the government to withhold all Medicaid money to states that did not expand Medicaid coverage to those who earned up to 133 percent of the FPL, which is about $31,000 for a family of four under the 2013 FPL stating “The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion.”⁹

State Decisions

The Supreme Court’s health reform ruling ended months of speculation and uncertainty, but it also raised key questions for Kansas policymakers. Among the most pressing was the question of Medicaid expansion. If policymakers chose not to comply with the eligibility changes called for in the law, an estimated 130,000 low-income adult Kansans might remain uninsured. States had to make a series of political, fiscal, and policy decisions moving forward to determine if Medicaid expansion made sense for them. Currently in Kansas, adults who are not elderly or disabled and who are not caretakers are not eligible for Medicaid at any income level. Adults who are caretakers with incomes up to roughly 27 percent of the FPL—then at around $6,000 per year—were eligible for Medicaid.

The ACA originally required states to expand eligibility for their Medicaid programs to all non-elderly individuals with incomes up to 133 percent of the FPL— about $31,000 for a family of four. The Court’s decision prohibiting the federal government from withholding Medicaid funding from states that did not comply with the Medicaid expansion requirement had the effect of making the expansion optional. Of the approximately 356,000 then-uninsured Kansans, 151,000 could qualify for the expanded Medicaid program if implemented by the State. Of those, an estimated 130,000 were low-income adult Kansans who did not qualify for Medicaid and who would be made eligible by the expansion.

The HHS had yet to promulgate guidance on the Medicaid expansion provision issue of how “current funding” was defined, which was another key consideration for the State. However, the issues of what constitutes expansion and whether partial expansion was allowed were addressed.

In a letter to Governors dated December 10, 2012, HHS Secretary Kathleen Sebelius clarified states would not receive 100 percent federal funding for partial Medicaid expansion. Secretary Sebelius’ December 10, 2012, posting on the HealthCare.gov blog addressed whether receipt of 100 percent of federal matching funds would be available to states choosing to expand to less than 133 percent of the FPL. She clarified that the law does not create an option for enhanced match for a partial or phased-in Medicaid expansion to 133 percent of poverty. Secretary Sebelius noted HHS would consider broad-based state innovation waivers at the regular matching rate then and again in 2017 when the 100 percent federal funding for the expansion group would be slightly reduced.

There were many questions to contemplate as Kansas weighed the decision of whether to expand the Medicaid program:

• Should the State not opt to expand Medicaid, how many of the 130,000 Medicaid expansion population would be subject to the individual mandate?

A person would be exempt from the individual mandate if they could not find coverage for less than eight percent of their annual income; for a family of four earning $31,000 (133 percent of the FPL), that was approximately $2,400 yearly, or $200 per month. Theoretically, many in this population would be unable to find “affordable” coverage and would have been exempt from the mandate.

• How will Disproportionate Share Hospital payment reductions apply?

The ACA began lowering what are known as “Disproportionate Share Hospital” or “DSH” payments in 2014. These are payments made to hospitals to help offset the costs of providing care to uninsured and low-income patients. The payments were being reduced under the theory that, as more people get insurance through the ACA, DSH payments would become less necessary. The reductions were set to be calculated based on the states’ rate of uninsured, but it was not clear how calculations would be made in states that did not expand the Medicaid program.

HHS’ Center for Medicare and Medicaid Services (CMS) issued the final rule on DSH reduction on September 18, 2013. The ACA required the use of a DSH Health Reform Methodology (DHRM) to determine the percentage reduction in each annual state DSH allotment in order to meet the required aggregate annual reduction in federal DSH funding. The statute required annual aggregate reductions in federal DSH funding from FY 2014 through FY 2020. The aggregate annual reduction amounts were as follows: $500 million for FY 2014; $600 million for FY 2015; $600 million for FY 2016; $1.8 billion for FY 2017; $5 billion for FY 2018; $5.6 billion for FY 2019; and $4 billion for FY 2020.

CMS expected states that did not expand Medicaid would have relatively higher rates of uninsured, and more uncompensated care than states that expanded. According to CMS, because states expanding Medicaid would likely have reductions in the rates of uninsurance, the reduction in DSH funding may be greater for those states than for states that do not expand. CMS anticipated hospitals in states that did not expand that serve Medicaid patients might experience a deeper reduction in DSH payments than they would if all states were to expand Medicaid, but those effects would not be experienced until after FY 2014 and FY 2015, based on then existing data reporting timelines.

As such, the DHRM proposed only for the first two years of DSH funding reductions (2014 and 2015) did not include a method to account for differential coverage expansions in Medicaid. Given the reduction on funding for Medicaid DSH in the ACA, in future rulemaking, CMS intended to account for the different circumstances among states in the formula for DSH allotment reductions for FY 2016 and later, when the relevant data would be available.

CMS notes that although the rule would reduce state DSH allotments, management of the reduced allotments largely remains with the states. Given that states would retain the same flexibility to design DSH payment methodologies under the state plan and individual hospital DSH payment limits would not be reduced, CMS noted it could not predict if or how states would exercise their flexibility in setting DSH payments given their reduced allotments and the effect that would have on providers.

• Can the state high-risk pool accommodate more persons when the federal high-risk pool ends in Calendar Year 2014?

In Kansas, the federal high-risk pool had around 470 enrollees (as of June 30, 2013, as reported by CMS), but the state high-risk pool had 1,305 (as of October 28, 2013, as reported by the Kansas Insurance Department). Both of these high-risk pools terminated member coverage effective December 31, 2013, when standard health coverage became available to all individuals under the ACA, regardless of health status. Open enrollment for health insurance policies available on the Health Insurance Marketplace began October 1, 2013. Individuals could go to the Marketplace and select a new plan without having to report a preexisting condition, with coverage beginning as early as January 1, 2014.

• What federal funding would be provided to states for Medicaid expansions?

If Kansas chose to expand the Medicaid program, the federal government would cover the cost of the newly eligible enrollees for the first three years. Over time, the federal government’s share would drop to 90 percent.

Year	Federal Share	State Share
2014	100%	0%
2015	100%	0%
2016	100%	0%
2017	97%	3%
2018	95%	5%
2019	93%	7%
2020 and Beyond	90%	10%

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Early Adopters of Expansion

Some states planned for and implemented the Medicaid expansion as of FFY 2013.

States Getting an Early Start on the Medicaid Expansion, April 2010–May 2012

	Coverage Authority	Effective Date	Income Limit	Enrollment
CA	Waiver	Nov 1, 2010	200% FPL	251,308
CT	ACA Option	Apr 1, 2010	56% FPL	74,752
CO	Waiver	Apr 1, 2010	10% FPL	10,000
DC	ACA Option Waiver	July 1, 2010 Dec 1, 2010	133% FPL 200% FPL	40,776 3,411
MN	ACA Option Waiver	March 1, 2010 Aug 1, 2011	75% FPL 250% FPL	80,200 41,811
MO	Waiver	Jul 1, 2012	133% FPL	0
NJ	Waiver	Apr 14, 2011	23% FPL	53,490
WA	Waiver	Jan 3, 2011	133% FPL	50,920

Kansas Action on Expansion in the 2013 Legislative Session

Kansas has not opted to expand Medicaid to date. Section 203 of 2013 SB 171 (the approved budget bill that made supplemental appropriations for FY 2013 [and FY 2014 for selected fee-funded agencies] and appropriations, including capital improvements for FY 2014 and FY 2015) addressed the issue of Medicaid eligibility expansion. Section 203 expressly prohibited the use of moneys appropriated from the State General Fund (SGF) or from any special revenue fund or funds for FY 2013, 2014, and 2015, to expand eligibility for receipt of benefits under Medicaid, as provided for in the ACA, unless the Legislature expressly consented to the expansion of Medicaid services.

In addition, several concurrent resolutions and one bill were proposed during the 2013 Legislative Session addressing Medicaid expansion, either directly or indirectly, as outlined below. However, no final action was taken on any of these measures.

House Concurrent Resolution No. 5013 was proposed, stating the will of the Kansas Legislature is that the State not expand Medicaid above its current eligibility levels. The resolution was heard before the House Committee on Appropriations, at which time testimony was presented both supporting and opposing the resolution, as well as testimony indicating the State should wait to see what flexibility the federal government might allow to make Medicaid expansion a Kansas-based program. The Committee recommended the resolution be adopted, but no further action was taken prior to the end of the session.

Also proposed during the 2013 Legislative Session were Senate Concurrent Resolutions (SCR) 1612 and 1613. SCR 1612 proposed Article 15 of the Kansas Constitution be amended to expressly reserve to the State and its citizens all powers not delegated to the United States by the U. S. Constitution or prohibited to the states by the U.S. Constitution. Health care was listed as included in these reserved powers. SCR 1613 made an application to the U.S. Congress to call a Constitutional Convention to consider an amendment to the U.S. Constitution with respect to states’ rights. The proposed amendment stated the State and its citizens have the sole and exclusive authority to regulate directly, and to regulate indirectly through taxes, several subjects, including health care and all forms of insurance. Both resolutions were referred to the Senate Committee on Federal and State Affairs, but no hearing was held on either.

Further, HB 2032 was proposed to expand Medicaid eligibility to 133 percent of the FPL, effective January 1, 2014, for adults under the age of 65 who are not pregnant. However, no bill hearing occurred.

Other State Actions on Expansion through Federal Fiscal Year 2013

States have flexibility to start or stop the expansion, but the federal match rates paid are tied by law to specific calendar years. As outlined in the ACA, for the first three years of the expansion, the federal government would pay for 100 percent of the costs of covering the newly eligible Medicaid population. However, that federal contribution declined to 90 percent by the year 2020, with the state picking up the remaining 10 percent.

According to CMS, as of October 24, 2013, 25 states and the District of Columbia had decided to move forward with Medicaid expansion, while 25 states were not expanding as of that date. Arkansas, Iowa, and Pennsylvania were exploring expansion alternatives.

Arkansas submitted a Medicaid expansion Section 1115 demonstration waiver application (Arkansas Health Care Independence Demonstration) to CMS, which received conceptual approval. As part of the final approval process, CMS accepted public comments on the proposal until September 7, 2013. The statewide demonstration would operate during calendar years 2014, 2015, and 2016. Under the proposed demonstration waiver, Arkansas would use premium assistance funds to purchase coverage within qualified health plans in its state and federal partnership exchange that were available in the individual market for certain individuals eligible for Medicaid coverage. These individuals would be either childless adults ages 19 to 65 with incomes at or below 138 percent of the FPL or parents between the ages of 19 and 65 with incomes between 17 and 138 percent of the FPL. Arkansas estimated approximately 225,000 individuals would be eligible for the demonstration.

Iowa also submitted a Medicaid expansion Section 1115 demonstration waiver application, which, like Arkansas’, would use Medicaid funds as premium assistance to purchase coverage for some newly eligible Medicaid beneficiaries in Marketplace (or Exchange) Qualified Health Plans. Like Arkansas, Iowa proposed to make premium assistance enrollment mandatory for affected beneficiaries and would exempt beneficiaries who are medically frail. However, Iowa proposed waiving wrap-around benefit requirements. The Iowa plan would limit coverage to newly eligible Medicaid beneficiaries between 101 percent and 138 percent of the FPL and would require enrollees to pay a premium of $20 per month, which may be waived if certain conditions were met. Additional details of the Iowa and Arkansas demonstration waiver are available in fact sheets prepared by the Kaiser Commission on Medicaid and the Uninsured, entitled Medicaid Expansion in Arkansas (February 12, 2015) and Medicaid Expansion in Iowa (November 20, 2015).

On September 16, 2013, Pennsylvania’s Governor proposed an insurance expansion, Healthy Pennsylvania. The Daily Pennsylvanian reported on October 8, 2013, that a policy report had been issued. Healthy Pennsylvania would serve 520,000 then-uninsured individuals. The proposal would rely on a health insurance exchange that would allow private insurance companies to compete for enrollees, whose premiums would be subsidized by the federal government. However, unlike Medicaid, the proposal would require enrollees to pay up to $25 per month in insurance premiums and create additional work requirements not present in Medicaid coverage. The work conditions included requiring able-bodied Medicaid beneficiaries to prove they are searching for employment, a requirement not allowed under federal law.

State Budget Concerns with Expansion

Matt Salo, then-Executive Director of the National Association of Medicaid Directors, stated that while politics is a factor, states have legitimate budget concerns when weighing Medicaid expansion. He stated that many state officials were already struggling to pay for the entitlement program, which typically is the largest or second-largest state expense. And while a state’s future share may sound small, it represents billions in new spending that could require cutbacks of other more popular programs, such as education or transportation, or require raising taxes.

The Congressional Budget Office projected states would pay approximately $73 billion, or 7 percent of the cost of the Medicaid expansion, between 2014 and 2022, while the federal government would pay $931 billion, or 93 percent.

Concerns over startup costs, the likelihood that millions of unenrolled persons already eligible for Medicaid would enroll as a result of publicity about the expansion, and the potential that a deficit-focused Congress would scale back the federal share caused states to evaluate whether they should opt for the expansion.

The woodwork effect—the possibility those individuals who were already eligible for Medicaid would enroll due to publicity about expansion—was of particular concern, because states would only receive the traditional federal funding match, averaging 57 percent, for those individuals.

The Kansas Department of Health and Environment contracted with Aon Hewitt to perform an independent analysis on the potential enrollment and costs of the ACA implementation to the state’s Medicaid and Children’s Health Insurance Program. The analysis, published on February 13, 2013, indicated the ACA (without Medicaid expansion) would cost the state an increase of $513.5 million from the SGF for calendar years 2014 through 2023. The ACA with Medicaid expansion over the same time period would cost the state an estimated increase of $1.1 billion from the SGF. The estimated cost increases for the SGF would have been lower in the early years of expansion due to the 100 percent federal share paid.

On April 5, 2013, in a KHI News Service article, Governor Brownback said he continued “active conversations with people” about the potential benefits and risks of expanding the state’s Medicaid program. He stated, “[e]xpansion would have to be addressed by the Legislature. They would have to budget it.” He indicated concerns that the federal government could eventually shift much of the program’s costs onto states. The Governor indicated he was aware of the federal government’s pledge to fully cover each state’s expansion cost for the first three years and to limit states’ responsibility to no more than ten percent thereafter, but that could change if federal funds were not available. Governor Brownback had not indicated whether he would decide on Medicaid expansion in 2013.

Health Care Provider Support for Expansion

Health care providers who treat low-income patients strongly supported the coverage expansion.

Richard J. Umbdenstock, then-President of the American Hospital Association (AHA), in a July 2012 New York Times article stated that hospitals around the country would lobby for the Medicaid expansion. “If states do not avail themselves of this opportunity, the federal money will go to other states, and hospitals will be left with large numbers of the uninsured,” he said.

After the Obama Administration’s announcement in July 2013 of a one-year delay on the ACA requirement that medium and large employers provide insurance coverage for their workers or face fines, Mr. Umbdenstock issued a statement on behalf of the AHA on July 3, 2013, in which he noted the AHA is “concerned that the delay further erodes the coverage that was envisioned as part of the ACA. This delay comes at a time when there is significant uncertainty regarding Medicaid expansion. We will continue to work with Congress and the administration on the implementation of the law to make sure that the coverage needs for the uninsured are met,” he said.

Nancy M. Schlichting, then-Chief Executive of the Henry Ford Health System in Detroit, said the July 2012, New York Times article, she “absolutely will lobby” for the expansion of Medicaid. She stated in a September 2, 2013, Detroit Free Press article, the expansion would provide “needed revenue for our health system and needed coverage for the people we serve.”

A report produced by researchers at Regional Economic Models, Inc., and The George Washington University released by the Kansas Hospital Association (KHA) in February 2013, Economic and Employment Effects of Expanding KanCare in Kansas, estimated the federal funding associated with KanCare expansion would help create approximately 3,400 new jobs in 2014 and 4,000 new jobs by 2020. According to the KHA, the report showed that expansion could help grow the Kansas economy and “documents the importance of Kansas carefully considering all aspects of expansion and making a decision that is best for Kansas.”

Per the KHA Media release of February 18, 2013, the report indicated expanding KanCare could actually result in a net cost savings for the state of $82 million from 2014 to 2020. Tom Bell, then-President and Chief Executive Officer of the KHA, stated, “[a] decision to forego Medicaid expansion is more than just a decision to refuse the federal funding associated with Medicaid expansion. In fact, it amounts to additional real cuts to hospitals that are currently serving as the primary safety net for many uninsured individuals, and it comes at a time when the uncompensated care burden on the hospitals continues to grow at an alarming rate.”

State Flexibility in Medicaid Expansion Participation

CMS has indicated there is much to consider in deciding whether to expand Medicaid, and there is no deadline by which states must make that determination. CMS stated states are expected and encouraged to look at their choices and options. CMS also stressed Medicaid expansion by states to include low-income adults is voluntary. CMS indicated this means a state can decide when to expand, if to expand, and whether to terminate the expansion. Since Medicaid expansion is voluntary, if a state adopts the expansion and determines at a later time, for whatever reason, it does not want to maintain the expansion, the state can also decide to discontinue the expansion. CMS noted that all other aspects of the Medicaid expansion program remain intact, including the favorable federal match rate available, and states need to think through the costs and benefits of expansion before making a decision.

1. 42 U. S. C. §1396c ↩︎
2. 42 U. S. C. §1396c ↩︎
3. 132 S. Ct. at 2604 ↩︎
4. 132 S. Ct. at 2607 ↩︎
5. 132 S. Ct. at 2605. ↩︎
6. 132 S. Ct. at 2606. ↩︎
7. 132 S. Ct. at 2607. ↩︎
8. 132 S. Ct. at 2608. ↩︎
9. 132 S. Ct. at 2608. ↩︎

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

Telemedicine Laws in Nearby States

Information on telemedicine and telehealth definitions, establishing a physician-patient relationship through telemedicine, and insurance coverage provided through telemedicine is detailed below. [Note: Provisions are excerpted to reflect relevant law.]

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Definition of Telemedicine or Telehealth in State Law

Arkansas	“Telemedicine” means the use of electronic information and communication technology to deliver healthcare services, including without limitation the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient. “Telemedicine” includes store and forward technology and remote patient monitoring and does not include the use of audio-only electronic technology by a physician to renew a written certification that was previously issued to the same patient (Ark. Code Ann. § 17-80-402).
Colorado	“Telemedicine” means the delivery of medical services through technologies that are used in a manner that is compliant with the federal “Health Insurance Portability and Accountability Act of 1996 [HIPAA]”, Pub.L. 104-191, as amended, including information, electronic, and communication technologies, remote monitoring technologies, and store-and-forward transfers, to facilitate the assessment, diagnosis, consultation, or treatment of a patient while the patient is located at an originating site and the person who provides the services is located at a distant site (Colo. Rev. Stat. Ann. § 12-240-104, relocated 2019). “Telehealth” means a mode of delivery of health care services through HIPAA-compliant telecommunications systems, including information, electronic, and communication technologies, remote monitoring technologies, and store-and-forward transfers, to facilitate the assessment, diagnosis, consultation, treatment, education, care management, or self-management of a covered person’s health care while the covered person is located at an originating site and the provider is located at a distant site. (Colo. Rev. Stat. Ann. § 10-16-123).
Illinois	“Telehealth services” means the evaluation, diagnosis, or interpretation of electronically transmitted patient-specific data between a remote location and a licensed health care professional that generates interaction or treatment recommendations. “Telehealth services” includes telemedicine and the delivery of health care services, including mental health treatment and substance use disorder treatment and services to a patient, regardless of patient location, provided by way of an interactive telecommunications system, asynchronous store and forward system, remote patient monitoring technologies, e-visits, or virtual check-ins (225 ILCS 150/5). “E-visit” means a patient-initiated non-face-to-face communication through an online patient portal between an established patient and a health care professional. “Interactive telecommunications system” means an audio and video system, an audio-only telephone system (landline or cellular), or any other telecommunications system permitting 2-way, synchronous interactive communication between a patient at an originating site and a health care professional or facility at a distant site. “Interactive telecommunications system” does not include a facsimile machine, electronic mail messaging, or text messaging. “Virtual check-in” means a brief patient-initiated communication using a technology-based service, excluding facsimile, between an established patient and a health care professional. “Virtual check-in” does not include communications from a related office visit provided within the previous 7 days, nor communications that lead to an office visit or procedure within the next 24 hours or soonest available appointment (215 ILCS 150/5).
Iowa	Telemedicine means the delivery of health care services through the use of real-time interactive audio and video, or other real-time interactive electronic media, regardless of where the health care professional and the covered person are located. “Telehealth” does not include the delivery of health care services delivered solely through audio-only telephone, electronic mail message, or facsimile transmission (ICA § 514C.34).
Kansas	“Telemedicine,” including “telehealth,” means the delivery of healthcare services or consultations while the patient is at an originating site and the healthcare provider is at a distant site. Telemedicine shall 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, that facilitate the assessment, diagnosis, consultation, treatment, education, and care management of a patient’s healthcare. “Telemedicine” does not include communication between: (A) Healthcare providers that consist solely of a telephone voice-only conversation, email, or facsimile transmission; or (B) a physician and a patient that consists solely of an email or facsimile transmission (KSA 40-2,211).
Missouri	“Telehealth” or “telemedicine”, the delivery of health care services by means of information and communication technologies which facilitate the assessment, diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while such patient is at the originating site and the health care provider is at the distant site. “Telehealth” or “telemedicine” shall also include the use of asynchronous store-and-forward technology (Mo. Ann. Stat. § 191.1145).
Nebraska	“Telehealth” means the use of medical information electronically exchanged from one site to another, whether synchronously or asynchronously, to aid a health care practitioner in the diagnosis or treatment of a patient. Telehealth includes services originating from a patient’s home or any other location where such patient is located, asynchronous services involving the acquisition and storage of medical information at one site that is then forwarded to or retrieved by a health care practitioner at another site for medical evaluation, and telemonitoring. Telehealth also includes audio-only services for the delivery of individual behavioral health services for an established patient, when appropriate, or crisis management and intervention for an established patient as allowed by federal law (Neb. Rev. Stat. Ann. § 71-8503). “Telehealth consultation” means any contact between a patient and a health care practitioner relating to the health care diagnosis or treatment of such patient through telehealth (Neb. Rev. Stat. Ann. § 71-8503). “Telemonitoring” means the remote monitoring of a patient’s vital signs, biometric data, or subjective data by a monitoring device which transmits such data electronically to a health care practitioner for analysis and storage (Neb. Rev. Stat. Ann. § 71-8503).
Oklahoma	“Telemedicine” and “telehealth” means technology-enabled health and care management and delivery systems that extend capacity and access, which includes: synchronous mechanisms, which may include live audiovisual interaction between a patient and a health care professional or real-time provider-to-provider consultation through live interactive audiovisual means; asynchronous mechanisms, which include store and forward transfers, online exchange of health information between a patient and a health care professional and online exchange of health information between health care professionals, but shall not include the use of automated text messages or automated mobile applications that serve as the sole interaction between a patient and a health care professional; remote patient monitoring; and other electronic means that support clinical health care, professional consultation, patient and professional health-related education, public health, and health administration (36 OS § 6802). Note: The same definition is also found at 59 OS § 478.
Texas	“Telehealth service” means a health service, other than a telemedicine medical service, delivered by a health professional licensed, certified, or otherwise entitled to practice in this state and acting within the scope of the health professional’s license, certification, or entitlement to a patient at a different physical location than the health professional using telecommunications or information technology (Tex. Occ. Code Ann. § 111.001). “Telemedicine medical service” means a health care service delivered by a physician licensed in this state, or a health professional acting under the delegation and supervision of a physician licensed in this state, and acting within the scope of the physician’s or health professional’s license to a patient at a different physical location than the physician or health professional using telecommunications or information technology (Tex. Occ. Code Ann. § 111.001).

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Establishing the Professional Relationship Through Telemedicine

Arkansas	(2) “Healthcare professional” means a person who is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of his or her profession (Ark. Code Ann. § 17-80-402). (4) “Professional relationship” means at minimum a relationship established between a healthcare professional and a patient when: (A) The healthcare professional has previously conducted an in-person examination and is available to provide appropriate follow-up care, when necessary, at medically necessary intervals; (B) The healthcare professional personally knows the patient and the patient’s relevant health status through an ongoing personal or professional relationship and is available to provide appropriate follow-up care, when necessary, at medically necessary intervals; (C) The treatment is provided by a healthcare professional in consultation with, or upon referral by, another healthcare professional who has an ongoing relationship with the patient and who has agreed to supervise the patient’s treatment, including follow-up care; (D) An on-call or cross-coverage arrangement exists with the patient’s regular treating healthcare professional or another healthcare professional who has established a professional relationship with the patient; (E)(i) A relationship exists in other circumstances as defined by rule of the Arkansas State Medical Board for healthcare professionals under its jurisdiction and their patients; (E)(ii) A relationship established under rules of the Arkansas State Medical Board may be utilized for telehealth certification; (F) A relationship exists in other circumstances as defined by rule of a licensing or certification board for other healthcare professionals under the jurisdiction of the appropriate board and their patients if the rules are no less restrictive than the rules of the Arkansas State Medical Board; (G)(i) The healthcare professional who is licensed in Arkansas has access to a patient’s personal health record maintained by a healthcare professional and uses any technology deemed appropriate by the healthcare professional, including the telephone, with a patient located in Arkansas to diagnose, treat, and if clinically appropriate, prescribe a noncontrolled drug to the patient; (G)(ii) For purposes of this subchapter, a health record may be created with the use of telemedicine and consists of relevant critical information required to treat a patient, and is reviewed by the healthcare professional who meets the same standard of care for a telemedicine visit as an in-person visit (Ark. Code Ann. § 17-80-402). (a)(1) A healthcare professional at a distant site shall not utilize telemedicine with respect to a patient located in Arkansas unless a professional relationship exists between the healthcare professional and the patient or the healthcare professional otherwise meets the requirements of a professional relationship as defined in § 17-80-402. (2) The existence of a professional relationship is not required in the following circumstances: (A) Emergency situations where the life or health of the patient is in danger or imminent danger; or (B) Simply providing information of a generic nature, not meant to be specific to an individual patient. (b) If the establishment of the professional relationship is permitted via telemedicine under § 17-80-402(4)(E) or § 17-80-402(4)(F), telemedicine may be used to establish the professional relationship only for situations in which the standard of care does not require an in-person encounter. (c) “Professional relationship” does not include a relationship between a healthcare professional and a patient established only by the following: (1) An internet questionnaire; (2) An email message; (3) Patient-generated medical history; (4) Text messaging; (6) A facsimile machine; or (7) Any combination of means listed in subdivisions (c)(1)-(5) of this section (Ark. Code Ann. § 17-80-403).
Colorado	(J)(5) The physician-patient/psychologist-patient relationship needs to be established. (a) This relationship is established through assessment, diagnosis and treatment of the patient. Two-way live audio/video services is acceptable to ‘establish’ a patient relationship. (b) Physicians / psychologists need to meet standard of care. (c) The patient is required to provide the appropriate consent for treatment. Source: 7 CCR 1101-3 (Rule 18) – specific to the Department of Labor and Employment, workers’ compensation. (e) A [insurance] carrier shall not: (III) Require a covered person to have a previously established patient-provider relationship with a specific provider in order for the covered person to receive medically necessary telehealth services from the provider (Colo. Rev. Stat. Ann. § 10-16-123).
Illinois	“Established patient” means a patient with a relationship with a health care professional in which there has been an exchange of an individual’s protected health information for the purpose of providing patient care, treatment, or services (225 ILCS 150/5). “Health care professional” includes, but is not limited to, physicians, physician assistants, optometrists, advanced practice registered nurses, clinical psychologists licensed in Illinois, dentists, occupational therapists, pharmacists, physical therapists, clinical social workers, speech-language pathologists, audiologists, hearing instrument dispensers, licensed certified substance abuse disorder treatment providers and clinicians, and mental health professionals and clinicians authorized under Illinois law to provide mental health services, and qualified providers listed under paragraph (8) of subsection (e) of Section 3 of the Early Intervention Services System Act, dietician nutritionists licensed in Illinois, and health care professionals associated with a facility (225 ILCS 150/5).
Iowa	As a condition of reimbursement pursuant to paragraph “a”, a health carrier shall not require that an additional health care professional be located in the same room as a covered person while health care services for a mental health condition, illness, injury, or disease are provided via telehealth by another health care professional to the covered person (ICA § 514C.34). A valid provider-patient relationship may be established through any of the following means: a. Through an in-person encounter which includes an in-person medical interview and physical examination conducted under the standard of care required for an in-person encounter. b. Through consultation with a primary care provider who has an established relationship with the patient and who agrees to participate in or supervise the patient’s care. c. Through telehealth, if the standard of care does not require an in-person encounter, in accordance with evidence-based standards of practice and telehealth practice guidelines that address the clinical and technological aspects of telehealth, and the student’s parent or guardian is present (ICA § 208A.3). [Note: ICA § 208A.3 is specifically regarding establishment of provider-patient relationship for services provided via telehealth in a school setting.]
Kansas	(b) Telemedicine may be used to establish a valid provider-patient relationship (KSA 40-2,212).
Missouri	Physicians licensed under chapter 334 who use telemedicine shall ensure that a properly established physician-patient relationship exists with the person who receives the telemedicine services. The physician-patient relationship may be established by: (1) An in-person encounter through a medical interview and physical examination; (2) Consultation with another physician, or that physician’s delegate, who has an established relationship with the patient and an agreement with the physician to participate in the patient’s care; or (3) A telemedicine encounter, if the standard of care does not require an in-person encounter, and in accordance with evidence-based standards of practice and telemedicine practice guidelines that address the clinical and technological aspects of telemedicine (Mo. Ann. Stat. § 191.1146). In order to establish a physician-patient relationship through telemedicine: (1) The technology utilized shall be sufficient to establish an informed diagnosis as though the medical interview and physical examination has been performed in person; and (2) Prior to providing treatment, including issuing prescriptions or physician certifications under Article XIV of the Missouri Constitution, a physician who uses telemedicine shall interview the patient, collect or review relevant medical history, and perform an examination sufficient for the diagnosis and treatment of the patient. A questionnaire completed by the patient, whether via the internet or telephone, does not constitute an acceptable medical interview and examination for the provision of treatment by telehealth (Mo. Ann. Stat. § 191.1146).
Nebraska	The Nebraska Telehealth Act does not: (1) Alter the scope of practice of any health care practitioner; (2) authorize the delivery of health care services in a setting or manner not otherwise authorized by law; or (3) limit a patient’s right to choose in-person contact with a health care practitioner for the delivery of health care services for which telehealth is available (Neb. Rev. Stat. Ann. § 71-8504). [Note: The Nebraska Telehealth Act requires certain disclosures but does not address how to establish the physician-patient relationship.]
Oklahoma	A. Unless otherwise prohibited by law, a valid physician-patient relationship may be established by an allopathic or osteopathic physician with a patient located in this state through telemedicine, provided that the physician: 1. Holds a license to practice medicine in this state; 2. Confirms with the patient the patient’s identity and physical location; and 3. Provides the patient with the treating physician’s identity and professional credentials. D. A physician-patient relationship shall not be created solely based on the receipt of patient health information by a physician. The duties and obligations created by a physician-patient relationship shall not apply until the physician affirmatively: 1. Undertakes to diagnose and treat the patient; or 2. Participates in the diagnosis and treatment of the patient (59 OS § 478.1).
Texas	(a) For purposes of Section 562.056, a valid practitioner-patient relationship is present between a practitioner providing a telemedicine medical service or a teledentistry dental service and a patient receiving the service as long as the practitioner complies with the standard of care described in Section 111.007 and the practitioner: (1) has a preexisting practitioner-patient relationship with the patient established in accordance with rules adopted under Section 111.006; (2) communicates, regardless of the method of communication, with the patient pursuant to a call coverage agreement established in accordance with (A) Texas Medical Board rules with a physician requesting coverage of medical care for the patient; or (B) State Board of Dental Examiners rules with a dentist requesting coverage of dental care for the patient; or (3) provides the telemedicine medical services or teledentistry dental services through the use of one of the following methods, as long as the practitioner complies with the follow-up requirements in Subsection (b), and the method allows the practitioner to have access to, and the practitioner uses, the relevant clinical information that would be required in accordance with the standard of care described in Section 111.007: (A) synchronous audiovisual interaction between the practitioner and the patient in another location; (B) asynchronous store and forward technology, including asynchronous store and forward technology in conjunction with synchronous audio interaction between the practitioner and the patient in another location, as long as the practitioner uses clinical information from: (i) clinically relevant photographic or video images, including diagnostic images; or (ii) the patient’s relevant clinical records, such as the relevant medical or dental history, laboratory and pathology results, and prescriptive histories; or C) another form of audiovisual telecommunication technology that allows the practitioner to comply with the standard of care described in Section 111.007. (b) A practitioner who provides telemedicine medical services to a patient as described in Subsection (a)(3) shall: (1) provide the patient with guidance on appropriate follow-up care; and (2) if the patient consents and the patient has a primary care physician, provide to the patient’s primary care physician within 72 hours after the practitioner provides the services to the patient a medical record or other report containing an explanation of the treatment provided by the practitioner to the patient and the practitioner’s evaluation, analysis, or diagnosis, as appropriate, of the patient’s condition. (c) Notwithstanding any other provision of this section, a practitioner-patient relationship is not present if a practitioner prescribes an abortifacient or any other drug or device that terminates a pregnancy (Tex. Occ. Code Ann. § 111.005).

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Coverage for Services Provided Through Telemedicine

Arkansas	(c)(1) A health benefit plan shall provide coverage and reimbursement for healthcare services provided through telemedicine on the same basis as the health benefit plan provides coverage and reimbursement for health services provided in person, unless this subchapter specifically provides otherwise. (2) A health benefit plan is not required to reimburse for a healthcare service provided through telemedicine that is not comparable to the same service provided in person. (3) A health benefit plan may voluntarily reimburse for healthcare services provided through means described in § 23-79-1601(7)(C). (e) A health benefit plan shall not impose on coverage for healthcare services provided through telemedicine: (1) An annual or lifetime dollar maximum on coverage for services provided through telemedicine other than an annual or lifetime dollar maximum that applies to the aggregate of all items and services covered; (2) A deductible, copayment, coinsurance, benefit limitation, or maximum benefit that is not equally imposed upon all healthcare services covered under the health benefit plan; (3) A prior authorization requirement for services provided through telemedicine that exceeds the prior authorization requirement for in-person healthcare services under the health benefit plan; (4) A requirement for a covered person to choose any commercial telemedicine service provider or a restricted network of telemedicine-only providers rather than a covered person’s regular doctor or provider of choice; or (5) A copayment, coinsurance, or deductible that is not equally imposed upon commercial telemedicine providers as those imposed on network providers (Ark. Code Ann. § 23-79-1602),
Colorado	(1) It is the intent of the general assembly to recognize the practice of telehealth as a legitimate means by which an individual may receive health care services from a provider without in-person contact with the provider. (2)(a) A health benefit plan that is issued, amended, or renewed in this state shall not require in-person contact between a provider and a covered person for services appropriately provided through telehealth, subject to all terms and conditions of the health benefit plan or dental plan. Nothing in this section requires the use of telehealth when a provider determines that delivery of care through telehealth is not appropriate or when a covered person chooses not to receive care through telehealth. A provider is not obligated to document or demonstrate that a barrier to in-person care exists to trigger coverage under a health benefit plan for services provided through telehealth. (b)(I) Subject to all terms and conditions of the health benefit plan or dental plan, a carrier shall reimburse the treating participating provider or the consulting participating provider for the diagnosis, consultation, or treatment of the covered person delivered through telehealth on the same basis that the carrier is responsible for reimbursing that provider for the provision of the same service through in-person consultation or contact by that provider (Colo. Rev. Stat. Ann. § 10-16-123).
Illinois	(b) An individual or group policy of accident or health insurance that is amended, delivered, issued, or renewed on or after the effective date of this amendatory Act of the 102nd General Assembly shall cover telehealth services, e-visits, and virtual check-ins rendered by a health care professional when clinically appropriate and medically necessary to insureds, enrollees, and members in the same manner as any other benefits covered under the policy. An individual or group policy of accident or health insurance may provide reimbursement to a facility that serves as the originating site at the time a telehealth service is rendered. (c) To ensure telehealth service, e-visit, and virtual check-in access is equitable for all patients in receipt of health care services under this Section and health care professionals and facilities are able to deliver medically necessary services that can be appropriately delivered via telehealth within the scope of their licensure or certification, coverage required under this Section shall comply with all of the following: (1) An individual or group policy of accident or health insurance shall not: (A) require that in-person contact occur between a health care professional and a patient before the provision of a telehealth service; (B) require patients, health care professionals, or facilities to prove or document a hardship or access barrier to an in-person consultation for coverage and reimbursement of telehealth services, e-visits, or virtual check-ins; (C) require the use of telehealth services, e-visits, or virtual check-ins when the health care provider has determined that it is not appropriate; (D) require the use of telehealth services, e-visits, or virtual check-ins when a patient chooses an in-person consultation; (E) require a health care professional to be physically present in the same room as the patient at the originating site, unless deemed medically necessary by the health care professional providing the telehealth service; (F) create geographic or facility restrictions or requirements for telehealth services, e-visits, or virtual check-ins; (G) require health care professionals or facilities to offer or provide telehealth services, e-visits, or virtual check-ins; (H) require patients to use telehealth services, e-visits, or virtual check-ins, or require patients to use a separate panel of health care professionals or facilities to receive telehealth service, e-visit, or virtual check-in coverage or reimbursement; or (I) impose upon telehealth services, e-visits, or virtual check-ins utilization review requirements that are unnecessary, duplicative, or unwarranted or impose any treatment limitations, prior authorization, documentation, or recordkeeping requirements that are more stringent than the requirements applicable to the same health care service when rendered in-person, except procedure code modifiers may be required to document telehealth. (2) Deductibles, copayments, coinsurance, or any other cost-sharing applicable to services provided through telehealth shall not exceed the deductibles, copayments, coinsurance, or any other cost-sharing required by the individual or group policy of accident or health insurance for the same services provided through in-person consultation. (3) An individual or group policy of accident or health insurance shall notify health care professionals and facilities of any instructions necessary to facilitate billing for telehealth services, e-visits, and virtual check-ins. (j) Nothing in this Section shall be deemed as precluding a health insurer from providing benefits for other telehealth services, including, but not limited to, services not required for coverage provided through an asynchronous store and forward system, remote patient monitoring services, other monitoring services, or oral communications otherwise covered under the policy. (k) There shall be no restrictions on originating site requirements for telehealth coverage or reimbursement to the distant site under this Section other than requiring the telehealth services to be medically necessary and clinically appropriate (215 ILCS 5/356z.22).
Iowa	2. Not withstanding the uniformity of treatment requirements of section 514C.6, a policy, contract, or plan providing for third-party payment or prepayment of health or medical expenses shall not discriminate between coverage benefits for health care services that are provided in person and the same health care services that are delivered through telehealth. 3 b. A health carrier shall not exclude a health care professional who provides services for mental health conditions, illnesses, injuries, or diseases and who is physically located out-of-state from participating as a provider, via telehealth, under a policy, plan, or contract offered by the health carrier in the state if all of the following requirements are met: (1) The health care professional is licensed in this state by the appropriate professional licensing board and is able to deliver health care services for mental health conditions, illnesses, injuries, or diseases via telehealth in compliance with paragraph “a”. (2) The health care professional is able to satisfy the same criteria that the health carrier uses to qualify a health care professional who is located in the state, and who holds the same license as the out-of-state professional, to participate as a provider, via telehealth, under a policy, plan, or contract offered by the health carrier in the state. 4. a. A health carrier shall reimburse a health care professional and a facility for health care services provided by telehealth to a covered person for a mental health condition, illness, injury, or disease on the same basis and at the same rate as the health carrier would apply to the same health care services for a mental health condition, illness, injury, or disease provided in person to a covered person by the health care professional or the facility. b. As a condition of reimbursement pursuant to paragraph “a,” a health carrier shall not require that an additional health care professional be located in the same room as a covered person while health care services for a mental health condition, illness, injury, or disease are provided via telehealth by another health care professional to the covered person. 5. This section applies to the following classes of third-party payment provider policies, contracts, or plans delivered, issued for delivery, continued, or renewed in this state on or after January 1, 2019: a. Individual or group accident and sickness insurance providing coverage on an expense-incurred basis. b. An individual or group hospital or medical service contract issued pursuant to chapter 509, 514, or 514A. c. An individual or group health maintenance organization contract regulated under chapter 514B. d. A plan established pursuant to chapter 509A for public employees. 6. This section shall not apply to accident-only, specified disease, short-term hospital or medical, hospital confinement indemnity, credit, dental, vision, Medicare supplement, long-term care, basic hospital and medical-surgical expense coverage as defined by the commissioner, disability income insurance coverage, coverage issued as a supplement to liability insurance, workers’ compensation or similar insurance, or automobile medical payment insurance (ICA § 514C.34).
Kansas	(b) No individual or group health insurance policy, medical service plan, contract, hospital service corporation contract, hospital and medical service corporation contract, fraternal benefit society, health maintenance organization, or the Kansas medical assistance program [KMAP] shall exclude an otherwise covered healthcare service from coverage solely because such service is provided through telemedicine, rather than in-person contact, or based upon the lack of a commercial office for the practice of medicine, when such service is delivered by a healthcare provider. (c) The insured’s medical record shall serve to satisfy all documentation for the reimbursement of all telemedicine healthcare services, and no additional documentation outside of the medical record shall be required. (d) Payment or reimbursement of covered healthcare services delivered through telemedicine may be established by an insurance company, nonprofit health service corporation, nonprofit medical and hospital service corporation, or health maintenance organization in the same manner as payment or reimbursement for covered services that are delivered via in-person contact is established (KSA 40-2,213).
Missouri	Each health carrier or health benefit plan that offers or issues health benefit plans which are delivered, issued for delivery, continued, or renewed in this state on or after January 1, 2014, shall not deny coverage for a health care service on the basis that the health care service is provided through telehealth if the same service would be covered if provided through face-to-face diagnosis, consultation, or treatment (Mo. Ann. Stat. § 376.1900).
Nebraska	(2) Any insurer offering (a) any individual or group sickness and accident insurance policy, certificate, or subscriber contract delivered, issued for delivery, or renewed in this state, (b) any hospital, medical, or surgical expense-incurred policy, except for policies that provide coverage for a specified disease or other limited-benefit coverage, or (c) any self-funded employee benefit plan to the extent not preempted by federal law, shall provide upon request to a policyholder, certificate holder, or health care provider a description of the telehealth and telemonitoring services covered under the relevant policy, certificate, contract, or plan. (3) The description shall include: (a) A description of services included in telehealth and telemonitoring coverage, including, but not limited to, any coverage for transmission costs; (b) Exclusions or limitations for telehealth and telemonitoring coverage, including, but not limited to, any limitation on coverage for transmission costs; and (c) Requirements for the licensing status of health care providers providing telehealth and telemonitoring services. Except as otherwise provided in section 44-793, the reimbursement rate for any telehealth service shall, at a minimum, be the same as a comparable in-person health care service if the licensed provider providing the telehealth service also provides in-person health care services at a physical location in Nebraska or is employed by or holds medical staff privileges at a licensed facility in Nebraska and such facility provides in-person health care services in Nebraska (Neb. Rev. Stat. Ann. § 44-312).
Oklahoma	A. For services that a health care practitioner determines to be appropriately provided by means of telemedicine, health care service plans, disability insurer programs, workers’ compensation programs, or state Medicaid managed care program contracts issued, amended, or renewed on or after January 1, 1998, shall not require person-to-person contact between a health care practitioner and a patient. B. Subsection A of this section shall apply to health care service plan contracts with the state Medicaid managed care program only to the extent that both of the following apply: 1. Telemedicine services are covered by, and reimbursed under, the fee-for-service provisions of the state Medicaid managed care program; and 2. State Medicaid managed care program contracts with health care service plans are amended to add coverage of telemedicine services and make any appropriate capitation rate adjustments. C. Any health benefit plan that is offered, issued, or renewed in this state by an insurer on or after the effective date of this act shall provide coverage of health care services provided through telemedicine, as provided in this section. D. An insurer shall not exclude a service for coverage solely because the service is provided through telemedicine and is not provided through in-person consultation or contact between a health care professional and a patient when such services are appropriately provided through telemedicine. An insurer may limit coverage of services provided by telehealth consistent with coding and clinical standards recognized by the American Medical Association or the Centers for Medicare and Medicaid Services as covered if delivered by telehealth or telemedicine, except as agreed to by the insurer and provider. E. An insurer shall reimburse the treating health care professional or the consulting health care professional for the diagnosis, consultation, or treatment of the patient delivered through telemedicine services on the same basis and at least at the rate of reimbursement that the insurer is responsible for coverage for the provision of the same, or substantially similar, services through in-person consultation or contact. F. An insurer shall not apply any deductible to telemedicine services that accumulates separately from the deductible that applies in the aggregate to all items and services covered under the health benefit plan. G. Any copayment or coinsurance applied to telemedicine benefits by an insurer shall not exceed the copayment or coinsurance applied to such benefits when provided through in-person consultation or contact. H. An insurer shall not impose any annual or lifetime durational limits or annual or lifetime dollar maximums for benefits or services provided through telemedicine that are not equally imposed upon all terms and services covered under the health benefit plan. I. An insurer shall not impose any type of utilization review on benefits provided through telemedicine unless such type of utilization review is imposed when such benefits are provided through in-person consultation or contact. Any type of utilization review that is imposed on benefits provided through telemedicine shall not occur with greater frequency or more stringent application than such form of utilization review is imposed on such benefits provided through in-person consultation or contact. J. An insurer shall not restrict coverage of telemedicine benefits or services to benefits or services provided by a particular vendor, or other third party, or benefits or services provided through a particular electronic communications technology platform; provided, that nothing shall require an insurer to cover any electronic communications technology platform that does not comply with applicable state and federal privacy laws. K. An insurer shall not place any restrictions on prescribing medications through telemedicine that are more restrictive than what is required under applicable state and federal law (36 OS § 6803).
Texas	(a) A health benefit plan: (1) must provide coverage for a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service, teledentistry dental service, or telehealth service on the same basis and to the same extent that the plan provides coverage for the service or procedure in an in-person setting; and (2) may not: (A) exclude from coverage a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service, a teledentistry dental service, or a telehealth service solely because the covered health care service or procedure is not provided through an in-person consultation; and (B) subject to Subsection (c), limit, deny, or reduce coverage for a covered health care service or procedure delivered as a telemedicine medical service, teledentistry dental service, or telehealth service based on the health professional’s choice of platform for delivering the service or procedure. (b) A health benefit plan may require a deductible, a copayment, or coinsurance for a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service, a teledentistry dental service, or a telehealth service. The amount of the deductible, copayment, or coinsurance may not exceed the amount of the deductible, copayment, or coinsurance required for the covered health care service or procedure provided through an in-person consultation. (b-1) Subsection (b) does not authorize a health benefit plan to charge a separate deductible that applies only to a covered health care service or procedure delivered as a telemedicine medical service, teledentistry dental service, or telehealth service. (c) Notwithstanding Subsection (a), a health benefit plan is not required to provide coverage for a telemedicine medical service, a teledentistry dental service, or a telehealth service provided by only synchronous or asynchronous audio interaction, including: (1) an audio-only telephone consultation; (2) a text-only e-mail message; or (3) a facsimile transmission. (d) A health benefit plan may not impose an annual or lifetime maximum on coverage for covered health care services or procedures delivered as telemedicine medical services, teledentistry dental services, or telehealth services other than the annual or lifetime maximum, if any, that applies in the aggregate to all items and services and procedures covered under the plan (Tex. Ins. Code Ann. § 1455.004).

Recent Telehealth-related Legislation in Kansas

Audiology and Speech-Language Pathology Interstate Compact

SB 77 (2021) enacted the Audiology and Speech-Language Pathology Interstate Compact (ASLP-IC). The stated purpose of the ASLP-IC is to facilitate the interstate practice of audiology and speech-language pathology with the goal of improving public access to audiology and speech-language pathology services.

The ASLP-IC provides licensure requirements for participating states. Licenses issued by a home state to audiologists or speech-language pathologists are recognized by each member state as authorizing the practice of audiology or speech-language pathology in each member state. The privilege to practice audiology or speech-language pathology is derived from the home state license. The ASLP-IC also requires member states to recognize the right of an audiologist or speech-language pathologist licensed in a member state to practice in another member state via telehealth.

The ASLP-IC is currently active in 29 states. States with pending legislation to adopt the ASLP-IC include Alaska, Illinois, New Jersey, Pennsylvania, and Wisconsin.

Psychology Interjurisdictional Compact

SB 170 (2021) enacted the Psychology Interjurisdictional Compact (PSYPACT), which provides for the interjurisdictional authorization of psychologists across state boundaries to practice telepsychology using telecommunication technologies and provide temporary in-person, face-to-face psychology services.

The PSYPACT, among other things, regulates the day-to-day practice of telepsychology and the temporary (30 days within a calendar year) in-person, face-to-face practice of telepsychology by psychologists across state boundaries in performing their psychological practice as assigned by appropriate authority. The PSYPACT requires compact states to recognize the right of a psychologist licensed in a PSYPACT state to practice telepsychology in other compact states in which the psychologist is not licensed. The PSYPACT establishes specific requirements for a psychologist licensed to practice in a compact state to exercise the authority to practice interjurisdictional telepsychology under the terms and provisions of the PSYPACT. The home state maintains authority over the license of any psychologist practicing into a receiving state under the authority to practice interjurisdictional telepsychology.

The PSYPACT has been in effect in Kansas since January 1, 2022. The PSYPACT formed in April 2019 when the seventh state enacted it into law, and it is currently effective in 39 states. The fortieth state, Vermont, enacted PSYPACT in 2023 with a tentative effective date of July 1, 2024.

Pharmacy Act—Amendments

Sub. for SB 238 (2021), among other things, amended and updated the Pharmacy Act of the State of Kansas (Pharmacy Act) with regard to the powers, duties, and functions of the State Board of Pharmacy. The bill defines the practice of telepharmacy and requires the State Board to adopt rules and regulations for the oversight and administration of telepharmacy.

The bill defines the practice of telepharmacy as the practice of pharmacy by a pharmacist located in Kansas using telecommunication or other automations and technologies to deliver personalized, electronically documented, real-time pharmaceutical care to patients, or their agents, who are located at sites other than where the pharmacist is located, including prescription dispensing and counseling and to oversee and supervise telepharmacy outlet operations. Telepharmacy outlets must be registered as a pharmacy under the Pharmacy Act, be owned by the managing pharmacy, and have a pharmacy technician on-site who performs activities under the electronic supervision of a pharmacist located in Kansas, who must be available to consult with and assist the pharmacy technician in performing activities.

Telemedicine Waivers; Licensure, Temporary Permits, and Regulatory Requirements

Senate Sub. for HB 2208 (2021), among other things, authorized licensed out-of-state physicians with telemedicine waivers to practice telemedicine in Kansas, among other things. The bill, more specifically authorizes a licensed out-of-state physician with a telemedicine waiver issued by the Board of Healing Arts (BOHA) to practice telemedicine in Kansas. The bill also amended the disciplinary authority of the Behavioral Sciences Regulatory Board (BSRB) and modifies licensure and temporary permit requirements of professional counselors, social workers, marriage and family therapists, addiction counselors, psychologists, and master’s level psychologists.

Out of State Telemedicine Practice

The bill authorizes a physician holding a license issued by the applicable licensing agency of another state or who otherwise meets the requirements of the bill to practice telemedicine to treat patients located in Kansas if the physician receives a telemedicine waiver issued by the Board of Healing Arts.

The bill requires the Board of Healing Arts to issue the waiver within 15 days from receipt of a complete application, if the physician:

• Submits a complete application, which may include an affidavit from an authorized third party that the applicant meets the requirements, in a manner determined by the Board of Healing Arts, and pays a fee not to exceed $100; and
• Holds an unrestricted license to practice medicine and surgery in another state or meets the qualification required under Kansas law for a license to practice medicine and surgery and is not the subject of any investigation or disciplinary action by the applicable licensing agency.

The bill requires a physician to practice telemedicine in accordance with the bill to conduct an appropriate assessment and evaluation of a patient’s current condition and document an appropriate medical indication for any prescription issued.

Rules and Regulations for Telemedicine Waivers

The bill requires any person who receives a telemedicine waiver to be subject to all rules and regulations pertaining to the practice of the licensed profession in Kansas and be considered a licensee for the purposes of the professional practice acts administered by the Board of Healing Arts. The bill also requires any waiver issued to expire on the date established, unless renewed by the Board of Healing Arts upon receipt of payment of an annual renewal fee not to exceed $100 and evidence the applicant continues to meet qualifications of the bill.

The bill does not prohibit a licensing agency from denying a waiver application if the licensing body determines granting the application may endanger the health and safety of the public.

Out-of-state Authorizations

The bill authorizes:

• A physician holding a license issued by the applicable licensing agency of another state to provide, without limitation, consultation through remote technology to a physician licensed in Kansas; and
• An applicable health care licensing agency of Kansas to adopt procedures consistent with this section to allow other health care professionals licensed and regulated by the licensing agency to practice telemedicine within the profession’s scope of practice by Kansas law, as deemed by the licensing agency to be consistent with ensuring patient safety.

Counseling Compact

HB 2288 (2023) enacted the Counseling Compact (Compact) to facilitate interstate practice of licensed professional counselors. Among the objectives of the Compact is allowing for the use of telehealth technology to facilitate increased access to professional counseling services.

The Compact requires member states to recognize the right of a licensed professional counselor, licensed by a home state in accordance with the Compact, to practice professional counseling in any member state via telehealth under a privilege to practice as provided in the Compact and rules promulgated by the Counseling Compact Commission. Under the Compact, a licensee providing professional counseling services in a remote state under the privilege to practice is required to adhere to the laws and regulations of the remote state.

The Compact is currently active in 29 states. New Jersey, South Carolina, Rhode Island, Wisconsin, and the District of Columbia currently have pending legislation to enact the Compact.

2023 Telehealth-related Legislation in Nearby States

In 2023, 45 states introduced legislation with provisions related to telemedicine. Of the states covered above, Arkansas, Illinois, Oklahoma, and Texas updated or created telemedicine law during their 2023 respective legislative sessions.

Arkansas

In 2023, Arkansas passed HB 1129, which provides for reimbursement from the State Medicaid Program for screening for behavioral health conditions and behavioral health services provided via telemedicine (2023 Ark. Act 494 (ACA § 20-77-148)).

HB 1261 (2023) allows an ambulance service’s operators to triage and transport a patient to an alternative destination in the state or treat in place if the ambulance service is coordinating care of the patient through telemedicine with a physician for a medical-based complaint or with a behavioral health specialist for a behavioral-based complaint. The bill also provides for the reimbursement rate for an ambulance service coordinating the care of the enrollee through telemedicine (2023 Ark. Act 480 (ACA § 20-13-107)).

SB 465 (2023) creates the Continuum of Care Program in the Department of Human Services for certain pregnant women and parents, with the purpose of facilitating the operation of a statewide telemedicine support network that provides community outreach, consultations, and care coordination for women who are challenged with unexpected pregnancies (2023 Ark. Act 703 (ACA § 20-8-1003)).

Illinois

In 2023, Illinois enacted HB 2395, which adds telemedicine to the definition of “practice of veterinary medicine” and provides parameters for telemedicine use in veterinary care (2023 Ill. Legis. Serv. P.A. 103-309).

SB 250 (2023) makes appropriations to the Department of Commerce and Economic Development for grants, loans, and contracts intended to support expanding and strengthening existing broadband infrastructure, health information technology, and telemedicine, among other things (2023 Ill. Legis. Serv. P.A. 103-6).

Oklahoma

In 2023, Oklahoma passed HB 2686, which amends statute relating to the establishment of the physician-patient relationship to add an exception. Telemedicine encounters in Oklahoma may not be used to establish a valid physician-patient relationship for the purpose of prescribing opiates, synthetic opiates, semisynthetic opiates, benzodiazepine or carisprodol, unless the encounter is used to prescribe opioid antagonists or partial agonists; the bill adds another exception to allow Schedule III, IV, or V controlled substances approved by the U.S. Food and Drug Administration for medication assisted treatment or detoxification treatment for substance use disorder (2023 Okla. Sess. Law Serv. Ch. 250).

SB 12X (2023) amends law relating to the use of telemedicine when a person is believed by law enforcement to require mental health treatment. The bill states sheriffs and peace officers may request an assessment at the point of initial contact with a person who is believed to require treatment, conducted by the Department of Mental Health and Substance Abuse Services. The Department may utilize telemedicine when such capability is available through a mobile computing device in the possession of the local law enforcement agency (2023 Okla. Sess. Law Serv. 1st Ex. Sess. Ch. 28).

Texas

Texas enacted HB 617 (2023), creating the Next Generation 9-1-1 Telemedicine Medical Services and Telehealth Services Pilot Project, which will establish a pilot project to provide emergency medical services instruction and emergency prehospital care instruction through a telemedicine medical service or telehealth service provided by regional trauma resource centers to health care providers in rural area trauma facilities and emergency medical services providers in rural areas. The bill includes definitions for “telehealth service,” “telemedicine medical service” (2023 Tex. Sess. Law Serv. Ch. 667).

SB 1146 (2023) establishes procedures to be used during the regularly scheduled transportation of female inmates for nonemergency medical care. The bill provides for the Department of Criminal Justice, in conjunction with The University of Texas Medical Branch at Galveston and the Texas Tech University Health Sciences Center, to establish procedures to increase opportunities and expand access to telemedicine medical services and telehealth services (2023 Tex. Sess. Law Serv. Ch. 1162).

by Leighann Thone, PhD
Research Analyst
785-296-4181