Could Kentucky Medicaid charge an optometrist copay but waive it for the same service from an ophthalmologist?

Plain-English summary

A Kentucky senator asked whether the state Medicaid program could require a copayment for a covered service performed by an optometrist but waive the copayment when an ophthalmologist performed the same service. The Attorney General said no. KRS 205.560(1)(e) placed optometric services on an equal footing when the service was covered through the ophthalmologist part of the program and the optometrist was licensed to provide it. The opinion also read the then-applicable copayment regulation as requiring a charge for both types of provider.

The holding concerned the same covered service and the optometrist’s licensed scope. The Attorney General said state law answered the question, so it did not analyze federal law or constitutional claims. The archive’s two-page PDF includes the opinion’s conclusion and signature but ends in the middle of footnote 2’s quotation from KRS 205.560(1).

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could Medicaid charge a copay for an optometrist but none for the same eye-care service from an ophthalmologist? A: The Attorney General said that different treatment violated the Kentucky statute and regulation it analyzed.

Q: Did the opinion cover every service an optometrist might provide?
A: No. Its reasoning concerned services covered under the ophthalmologist part of the program that the optometrist was licensed to perform.

Q: Did the Attorney General decide a federal-law or constitutional challenge? A: No. The opinion expressly stopped at Kentucky statute and regulation.

Background and statutory framework

KRS 205.6312(6) authorized Medicaid copayments, and the regulation identified in the opinion imposed charges for listed optometrist and physician services. KRS 205.560(1)(e) addressed when optometric services were included in Medicaid coverage. The Attorney General concluded that the regulation could not be read to treat the same covered service differently solely because a licensed optometrist rather than an ophthalmologist provided it.

Citations and references

Statutes: KRS 205.560(1)(e); KRS 205.6312(6).

Regulation: 907 KAR 1:604E.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_91144a1f-220f-4638-8085-515e264178f4/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_91144a1f-220f-4638-8085-515e264178f4

Original opinion text

OAG 03-004
October 3, 2003
Subject:

Co-payments for Medicaid Recipients

Requested by:

State Senator Julie Rose Denton

Written by:

Ryan Halloran, Assistant Attorney General

Syllabus:

It is a violation of KRS 205.560(1)(e) to require a copayment for a service provided by an optometrist under the Kentucky Medicaid Program, but not require a co-payment for the same service when provided by an ophthalmologist.

Statutes construed:

KRS 205.560(1)(e)

Opinion of the Attorney General
Senator Julie Rose Denton has requested the opinion of this office as to whether the state Medicaid program can require a co-payment for a covered service rendered by an optometrist, but not for the same service if rendered by an ophthalmologist. In the opinion of this office the answer is no. Because we think the resolution of the question is clear under state statute we will not conduct an analysis of federal law or of whether the federal and state constitutions are implicated. KRS 205.6312(6) authorizes the Cabinet for Health Services to institute co-payments for medical services provided under the Medicaid Program. The Cabinet has done so by Administrative Regulation 907 KAR 1:604E. 1 That regulation provides a co-pay1

907 KAR 1:604E Section 2 (1) provides: Except as excluded in Subsection (5) of this section, the department shall require a recipient to make a copayment for: (b) A service provided by: 1. An audiologist; 2. A chiropractor; 3. A dentist; 4. A hearing aid dealer; 5. An optician; 6. An optometrist; or 7. A podiatrist; and (c) A general ophthalmological service provided by: 1. A physician; 2. An advanced registered nurse practitioner; 3. A primary care center or federally-qualified health center; or 4. A rural health clinic.

OAG 03-004
Page 2

ment of two dollars ($2.00) for covered medical services provided by an optometrist and a general ophthalmological service provided by a physician. 907 KAR 1:604E(2)(b) and (c). Optometric services are specifically included in the Medicaid Program to the extent those services are covered in the ophthalmologist portion of the program and the optometrist is licensed to perform them. KRS 205.560(1)(e). 2 The statute places ophthalmological services covered under the Medicaid Program, to the extent an optometrist is licensed to perform them, on an equal basis, whether delivered by an ophthalmologist or an optometrist. The regulation implementing the co-payments requires a co-payment for both opthalmological services provided by an optometrist and general ophthalmological services provided by a physician. See administrative regulation 907 KAR 1:604E(2). Hence, any interpretation of the regulation that requires a co-payment for ophthalmological services rendered by an optometrist, but not for an ophthalmologist, in our opinion, violates KRS 205.560(1)(e) and the regulation. See Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934) (“When language is clear and unambiguous, it will be held to mean what it plainly expresses”). Albert B. Chandler III Attorney General

Ryan Halloran
Assistant Attorney General

2

KRS 205.560(1) provides: The scope of medical care for which the Cabinet for Health Services undertakes to pay shall be designated and limited by regulations promulgated by the cabinet, pursuant to the provisions in this section. . . . The selection of another class or other classes of medical care shall be recommended by the council to the secretary for health services after taking into consideration, among other things, the amount of federal and state funds available, the most essential needs of recipients, and the meeting of such need on a basis insuring the greatest amount of medical care as defined in KRS 205.510 consonant with the funds available, including, but not limited to, the following categories. . . : (e) Optometric services for all age groups shall be limited to prescription services, services to frames and lenses, and diagnostic services provided by an optometrist