Medical & Professional Licensing Board Matters
Licensing board complaints may be filed by patients, their family members, other healthcare providers, employees, or anyone who interacts with a physician. Increasing awareness of this fact, aided by consumer groups and state laws which require posting patient bills of rights in waiting rooms, has led to more medical board complaints being filed and sanctions imposed. Disciplinary action can include: a reprimand, restrictions on a physician’s practice, continuing medical education or monitoring requirements, probation, license suspension or revocation. Moreover, the adverse consequences of a board complaint do not necessarily end there.
Physicians generally are required by contract to report disciplinary actions to their professional liability carriers, managed care plans and patients’ health insurance plans. Federal law also requires that discipline be reported to the National Practitioner Data Bank, which hospitals must check before granting or renewing medical staff privileges. Thus, a cascade of negative effects may flow from a single board complaint. Depending on the alleged offense and the board’s conclusion, a physician’s reputation and livelihood may be destroyed. So the importance of properly responding to a licensing board complaint cannot be overstated.
If you are contacted by an investigator or receive a letter from the Georgia Composite Medical Board (“GCMB,” “Georgia Medical Board,” “Medical Board” or “Board”) about a complaint, you may be uncertain about what to do next, what the procedures are, and what the results may be. You also may be unsure whether you need to retain a lawyer. At the Law Office of Kevin O’Mahony, we represent physicians, physician assistants and nurse practitioners (“licensees”) in responding to the Georgia Medical Board and defending against allegations of misconduct.
Georgia Medical Board
The Georgia Medical Board was established by the General Assembly to regulate the practice of medicine. The statutory authority that establishes the Board, the “Medical Practice Act,” and the “Patient Right to Know Act,” are contained in the Official Code of Georgia Annotated in Title 43, Chapters 34 and 34A (O.C.G.A. §§43-34 and 34A). The GCMB’s official Administrative Rules are published separately from the law and further clarify regulation of the professions licensed by the Medical Board. The Medical Board’s Rules are available online on its website.
The Georgia Medical Board is comprised of 15 volunteer members who are appointed by the governor and an ex-officio volunteer member appointed by the Board. Of those members, 13 are actively practicing physicians, two are non-physician consumer advocates, and one is an ex-officio physician assistant member who does not vote on matters related to physicians. The Board is assisted in its work by an executive director and a team of dedicated staff members and investigators.
The Medical Board licenses and is responsible for regulating over 48,000 professionals licensed in Georgia. These groups include physicians, physician assistants, resident physicians, respiratory care professionals, perfusionists, orthotists, prosthetists, acupuncturists, cosmetic laser practitioners and pain management clinics. The Board also reviews protocols that incorporate prescriptive authority for advanced practice nurses and influenza vaccines.
As stated in its mission statement, the Medical Board’s goal is “to protect the health of Georgians through the proper licensing of physicians and certain members of the healing arts and through the objective enforcement of the Medical Practice Act.” In pursuit of that goal, the Board investigates complaints and disciplines those who violate the Medical Practice Act or other laws governing the professional behavior of its licensees.
A recent analysis of complaints filed with the Georgia Medical Board revealed that approximately half of them were brought by patients or patients’ family members. Other sources of complaints were malpractice carriers (reporting payments of settlements or damage awards), hospitals (reporting adverse actions taken with regard to medical staff privileges), pharmacies (reporting improper prescriptions or prescribing practices), other practitioners and other regulatory agencies. The Medical Board receives approximately 2,000 complaints per year, and according to the Board’s annual reports, the number of complaints increased by more than 80% between 2001 and 2011. This resulted in a 23% increase in the number of public disciplinary actions taken by the Board over that same 10-year period.
One reason for this increase is added scrutiny by media and healthcare consumer watchdog groups. One organization actually “grades” and ranks state medical boards based on the number of disciplinary actions they take each year. The annual grade and ranking is then widely publicized. And in some states, the medical board’s chief executive’s job can be jeopardized by a low score or ranking in disciplining physicians. Lower ranking boards may also become the subject of heightened public criticism, as well as closer legislative scrutiny.
Newspaper articles about notorious cases and widespread internet technology, providing instant, easy access to healthcare provider’s licensing information, has also fueled an increase in complaints, investigations and disciplinary actions. The GCMB’s website, for example, allows anyone to “look up [any] licensed provider” in Georgia, and immediately access his or her “Physician Profile,” including education and training credentials, any “Public Board Orders,” malpractice settlements, judgments and awards. The website also has a specific link, which enables consumers to easily file complaints online. These factors have combined not only to increase the number of complaints filed, but also to intensify pressure on the Board to thoroughly investigate and impose more severe disciplinary sanctions in more cases.
Moreover, Georgia law now provides that physicians are required to post a patient “bill of rights” in their waiting rooms and specifically states that: (a) the patient or any person that the Board deems to have a legitimate interest has the right to file a grievance with the Board concerning a physician, staff, office or treatment received; and (b) the declaration of the patient’s rights shall be prominently displayed in conspicuous language in the physician’s waiting room. This declaration may be contained in the same notice as the right to obtain physician profiles. The declaration of rights must contain the following statement: “The patient has the right to file a grievance with the Georgia Composite Medical Board concerning the physician, staff, office and treatment received. The patient should either call the board with such a complaint or send a written complaint to the board. The patient should be able to provide the physician or practice name, the address, and the specific nature of the complaint.” Such notice must include the current phone number and address of the Board. It therefore is unsurprising that more complaints have been filed with the Medical Board in recent years.
Complaints that are filed with the Board may involve the following issues or allegations, among others:
- Documentation or medical record keeping violations
- Failure to timely complete continuing medical education (“CME”)
- Substandard practice/ standard of care violations
- Unprofessional Conduct
- Discipline by peers / adverse actions taken by hospitals or medical staffs
- Discipline by another state licensing board
- Inappropriate prescribing or administration of a medication (including controlled substances) or treatment
- Impairment or inability to practice due to alcohol or chemical abuse, or a physical or mental condition
- Disruptive behavior issues
- Boundary issues (sexual misconduct or inappropriate sexual contact)
- Violation of an existing Board Disciplinary Order
- Criminal conduct (arrests or convictions)
- Medicare or Medicaid fraud
- Private health insurance fraud
- Probation violations
Investigations and disciplinary actions with regard to these issues are often complicated and fact-intensive, and some of the issues may overlap. For instance, according to the Medical Practice Act, “unprofessional conduct” includes “any departure from or failure to conform to the minimal standards of acceptable and prevailing medical practice and shall also include, but not be limited to the prescribing or use of drugs, treatment or diagnostic procedures which are detrimental to the patient as determined by the minimal standards of acceptable medical care.”
According to the Board, “examples of unprofessional conduct include, but are not limited to, physical abuse of a patient, inadequate record keeping, not recognizing or acting upon common symptoms, prescribing drugs in excessive amounts or without legitimate reason, personal impairment (mental or physical) that hinders safely practicing within the scope of one’s license or certificate, performing duties beyond the scope of one’s license or certificate and dishonesty.” The investigations and discipline rules of the Georgia Medical Board (Rules 360-3-.02 and 360-3-.04) also provide additional examples of unprofessional conduct for which a licensee may be disciplined.
While a large number of complaints are found to be without merit, many are deemed legitimate and warrant thorough investigation. With few exceptions (discussed on its website), the Board has a duty to investigate practically all complaints it receives. And some investigations involve multiple steps, require large amounts of time and effort, and are quite complex. Procedural stages in the development of a GCMB investigation and disciplinary case may include some or all of the following steps:
- Receipt of call or letter from Medical Board investigator requesting interview
- Possible interview(s) by Board investigator(s) – may occur with or without licensee’s counsel present, depending upon whether counsel’s presence is insisted upon by licensee
- Receipt of initial Complaint letter requesting written narrative response by physician and Subpoena demanding production of medical records
- Preparation and submission of written narrative response by physician and production of records to the Board
- Board’s review of materials received from complainant and physician and investigation
- Receipt of Decision Letter from Board, closing case if Board decides no violation at this stage (with or without a warning or some other recommended steps short of mandatory remedial or disciplinary action)
- Formal/additional investigation phase (if prior steps do not result in case being closed)
- Medical Board interview of physician/meeting at Board’s office
- Informal Settlement Conference(s)
- Consent Order negotiations and possible agreed-upon Consent Order (public or private, with or without possibility of non-disciplinary consent agreement)
- Orders – often with imposition of sanctions for violations (including reprimand, restrictions on the physician’s license to practice, continuing medical education or monitoring requirements, probation, license suspension, revocation, etc.)
- Contested Case Hearing Process – Office of State Administrative Hearings (“OSAH”), hearing before Administrative Law Judge (“ALJ”)
- Possible Mediation of contested cases
- ALJ Decision following hearing
- Motions for Rehearing and Appeals
Mistakes physicians commonly make in responding to Medical Board inquiries or investigations include:
- Failing to promptly consult with legal counsel and fully disclosing all important facts.
- Taking the complaint lightly or going into denial-mode.
- Ignoring or missing the response deadline.
- Failing to notify your malpractice insurer or risk manager.
- Contacting the complaining party and trying to “talk them out of it.”
- Responding angrily or emotionally.
- Needlessly admitting fault.
- Responding as if speaking to physicians fully-versed in your specialty.
- Failing to respond to every charge in the complaint.
- Hiding, altering or destroying records.
(See 10 Mistakes Physicians Make After a Licensing Board Complaint article by Kevin O’Mahony, and action steps recommended therein.)
As previously mentioned, all public disciplinary actions taken by the Board are required to be entered on the physician’s profile on the Board’s website. The Public Board Order itself can be viewed online by anyone who wishes. Public disciplinary actions are also reported to the Federation of State Medical Boards (“FSMB”). The FSMB is a national clearinghouse whose membership is comprised of all state medical boards nationwide. The FSMB issues periodic reports to all state medical boards, informing of any public actions taken against a physician by another state medical board. Thus, if a physician who is licensed in Georgia, Florida and North Carolina has a disciplinary action taken against him or her by the GCMB, the action will be reported to the FSMB. The FSMB will then report that action to the Florida and North Carolina medical boards, which then may initiate their own investigations leading to disciplinary actions in those states as well.
Additional collateral effects of a Medical Board action may include loss of hospital privileges, loss of participation in preferred provider organizations, loss of enrollment with third-party payers, loss of board certifications, loss of DEA registration, and exclusion from participation in Medicare, Medicaid and other government programs. Depending on the allegations and the Board’s decision, a physician’s reputation and livelihood may be destroyed. So the importance of promptly and properly responding to a Medical Board complaint cannot be overstated.
If you receive a letter or phone call from a Medical Board investigator, it is crucial that you do not procrastinate or ignore the notice. But it is almost never advisable for a licensee to meet with or be questioned by a Board investigator without legal counsel present. It is therefore strongly recommended that you seek the advice and assistance of an experienced healthcare attorney immediately.
Seemingly minor or simple cases can become complex and major cases quickly. You therefore need an attorney who is familiar with the entire process, including interviews, hearings, proposed settlements by consent order and appeals. We have many years’ experience representing physicians and other healthcare providers in medical and healthcare professional licensing board matters. We can help you take the appropriate steps to protect your license and ability to practice. Please call or email us if you wish to schedule a consultation.
Interstate Medical Licensure Compact Act
In April 2019, the Georgia General Assembly passed and Governor Kemp signed into law Senate Bill 16. This new law (effective July 1, 2019, and codified at § 43-34-300, et seq.) authorizes Georgia to enter into an interstate compact known as the “Interstate Medical Licensure Compact Act,” which complements existing licensure and regulatory authority of state medical boards, and provides a streamlined process for physicians to become licensed in multiple states.
The new law allows the Georgia Medical Board to administer the Interstate Medical Licensure Compact in Georgia. Among other things, the new law also: requires fingerprint records checks; provides for application of an expedited license; provides for a coordinated information system; provides for joint investigations and discipline; provides for a commission to administer the Compact among the member states; provides for dispute resolution; and repeals conflicting laws.
Georgia is the 31st member jurisdiction to join the Compact. The Compact now includes 29 states, the District of Columbia, and the Territory of Guam as member jurisdictions. Similar legislation has been introduced in other states as well.
One snag has arisen in Georgia, however. At its November 2019 monthly meeting, the GCMB received news that the state will be unable to fully implement the Interstate Medical Licensure Compact because the Board does not have the requisite authority to require licensees to undergo a fingerprint-based background check. A legislative change will be necessary to correct this issue. Until that happens, Georgia will be able to license physicians who come from other Compact states, but Georgia will not be able to serve as the state of origin for a licensee under the Compact.
At its December 2019 meeting, the GCMB’s Rules Committee approved for initial adoption Rule 360-40, implementing the Interstate Medical Compact under Senate Bill 16. Written comments on the proposed rule must be submitted on or before January 6, 2020. We will update this webpage when additional information regarding the status of this proposed rule is available.
During the 2019 legislative session, the Georgia Legislature passed and the Governor signed two bills designed to make healthcare more accessible via a computer, smartphone or tablet and more affordable to patients throughout the state. One of those bills requires parity in payment for providers offering medical care via digital or telehealth transmission. The other allows physicians to practice telemedicine across state lines so that more doctors and specialists would be available — something especially needed in rural areas, where Georgia has a doctor shortage.
Specifically, SB 118 revised Georgia’s Telemedicine (now “Telehealth”) Act (O.C.G.A. § 33-24-56.4), relating to payment for telemedicine services. The new law now requires payment parity for telehealth services, requiring health plans to pay providers for telehealth services at the same or equivalent reimbursement rate for identical in-person services. SB 115 revised the Medical Practice Act (specifically subsection (a) of O.C.G.A. §43-34-31), relating to the practice of medicine from foreign jurisdictions by electronic means, allowing out-of-state physicians to apply to be licensed telehealth providers in Georgia.
By embracing technological innovation, both of these provisions are intended to make healthcare more accessible and affordable to patients throughout Georgia. However, many physicians and the Medical Board worry that an inability to conduct an in-person physical examination or access all of the patient’s records could lead to inaccurate diagnosis, inappropriate treatment or patient harm. So doctors still must be cautious about when telemedicine is appropriate and in the patient’s best interest.
Previously, in 2014, the GCMB enacted a regulation governing the standards for practicing telemedicine in Georgia. The regulation, titled Practice Through Electronic or Other Such Means, was intended to establish minimum standards of practice for providing treatment or consultation recommendations through the use of telemedicine. See Georgia Comp. Rules and Regs. rule 360-3-.07.
Rule 360-3-.07 not only offers guidance, it also imposes certain restrictions on telemedicine or telehealth in Georgia. Key provisions of the rule include the following:
- Georgia License Required. All treatments and consultations via telemedicine must be done by Georgia-licensed providers, which include not only physicians, but also physician assistants (“PAs”) and advanced practice registered nurses (“APRNs”).
- In-Person Examination. Prior to a telemedicine encounter, a telemedicine provider must have personally conducted an in-person examination of the patient unless one of three exceptions apply: (1) the telemedicine provider is able to examine the patient using technology and peripherals that are equal or superior to an in-person examination done by a provider within that provider’s standard of care.; or (2) the telemedicine provider is providing care (conducting the telemedicine encounter) at the request of a physician, PA or APRN licensed in Georgia who has personally seen and examined the patient; or (3) the telemedicine provider is providing care (conducting the telemedicine encounter) at the request of a Public Health Nurse, a Public School Nurse, the Department of Family and Children’s Services, law enforcement, community mental health center or through an established child advocacy center for the protection or a minor, and the provider is able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by a provider within that provider’s standard of care.
- Records. The telemedicine provider must have the patient’s medical history available at the time of the consult. The provider must maintain patient records of the encounter and must document the evaluation and treatment. If there is a referring practitioner, the telemedicine provider must send a copy of this record to the referring practitioner.
- Operational. The patient must receive the telemedicine provider’s credentials and emergency contact information. The patient must also receive clear instructions on follow-up in the event the patient needs emergency care related to the telemedicine treatment.
- Annual In-Person Follow-Up Exam. The telemedicine provider must make “diligent efforts” to have the patient seen and examined in-person by a Georgia-licensed physician, PA or APRN at least once a year.
- Standard of Care. The regulations defer to the existing standard of care expectations, and do not alter existing requirements on the practice of medicine or medical malpractice.
Given these requirements, steps that need to be taken or considered before providing telemedicine services in Georgia include the following:
Meet the Licensing Requirements. Physicians providing services via telemedicine to patients located in Georgia must be licensed in Georgia. Licensing exemptions are available, such as the peer-to-peer consultation exception. And out-of-state physicians may now apply to be licensed telehealth providers in Georgia. But Georgia’s licensing requirements must be met.
Establish a Valid Provider-Patient Relationship. A valid physician-patient relationship may be established via telemedicine if, prior to the telemedicine encounter, the provider meets one of the following conditions:
- The provider has personally seen and examined the patient (in-person) and provides ongoing or intermittent care by electronic or other such means; or
- The provider is providing medical care by electronic or other such means at the request of a physician, physician assistant or advanced practice registered nurse licensed in Georgia who has personally seen and examined the patient;
- The provider is providing medical care by electronic or other such means at the request of a Public Health Nurse, a Public School Nurse, the Department of Family and Children’s Services, law enforcement, community mental health center or through an established child advocacy center for the protection of a minor, and the physician, physician assistant or advanced practice registered nurse is able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by a provider within that provider’s standard of care; or
- The provider is able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by a provider within that provider’s standard of care. (Georgia telemedicine regulations do not specify a required telemedicine modality and do not explicitly require the use of real-time audio-video technology for all telemedicine services.)
Conduct Annual In-Person Follow-Up Exam. The telemedicine provider must make diligent efforts to have the patient seen and examined in-person by a Georgia-licensed physician, PA or APRN at least once a year.
Meet Standard of Care Obligations. The telemedicine rules in Georgia explicitly require that a physician using telemedicine will be held to the same standard of care as a physician that is using traditional in-person methods.
Comply With Telemedicine Prescribing Requirements. In Georgia, it is considered unprofessional conduct if a physician prescribes controlled substances or dangerous drugs for a patient based solely on a consultation via telemedicine with the patient, patient’s guardian, or patient’s agent. The state also bans prescribing controlled substances via telemedicine for the treatment of pain or chronic pain. Telemedicine prescribers must also be aware of prescribing requirements under federal laws. For example, telemedicine prescribing of controlled substances is also governed by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008.
Supervise Non-Physician Healthcare Providers. Georgia physicians may rely upon or delegate the provision of telemedicine services to a non-physician healthcare provider (NP or PA) if the physician documents to the Board that that the provision of care by telemedicine is in his or her scope of practice, the NP or PA has demonstrated competence in the provision of care by telemedicine, and all other applicable laws and rules are met.
Maintain Patient Records. In Georgia, the telemedicine provider must have the patient’s medical history available at the time of the consult. The provider must maintain patient records of the encounter and must document the evaluation and treatment. If there is a referring practitioner, the telemedicine provider must send a copy of this record to the referring practitioner.
Provide Patients with Information. The patient must receive the telemedicine provider’s credentials and emergency contact information. The patient must also receive clear instructions on follow-up in the event the patient needs emergency care related to the telemedicine treatment.
Check Insurance Coverage of Telehealth Services. Georgia is among the majority of states to have enacted a telehealth commercial insurance coverage law. Under the law, every health benefit policy that is issued, amended, or renewed must include payment for services that are covered under such health benefit policy and are appropriately provided through telemedicine in accordance with O.C.G.A. §43-34-31 and generally accepted healthcare practices and standards prevailing in the applicable professional community at the time the services were provided. The coverage required may be subject to all terms and conditions of the applicable health benefit plan.
Review Latest Medicare Telehealth Reimbursement Rules. Georgia providers should also consider the latest Medicare telehealth reimbursement opportunities signed into law under federal funding legislation. Continued expansion in coverage and reimbursement, including remote patient monitoring, means providers can increase telehealth offerings to improve patient access to care, quality of care, patient satisfaction, cost savings and revenue generation.
At its October and November 2019 meetings, the GCMB discussed possible changes to its regulations regarding the practice of medicine via electronic means. Two rules changes would deal with prescriptive authority and the requirement for a prior in-person exam before utilizing virtual services. The Board has received numerous inquiries and comments from healthcare providers regarding the need to update the regulations. And the passage of SB 115 and SB 118 requires the Board to update its rules. But the Board was reluctant to do so too quickly because of patient safety concerns. The Board therefore planned to discuss the regulations in-depth with various stakeholders at another upcoming meeting.
At its December 2019 meeting, the GCMB’s Rules Committee approved for initial adoption Rule 360-2.17, creating a telemedicine license under SB 118. The Rules Committee heard a presentation on the limitations of the current telemedicine rules from the president of WellStar Medical Group and the associate medical director of hospital and acute care at Southeastern Permanente Medical Group. The general counsel to the lieutenant governor, the associate chief medical officer at Emory Healthcare, and the dean of Mercer University School of Medicine also participated in the discussion. Afterward, the Board agreed to explore opportunities to clarify and update its rules regarding the use of telemedicine without a prior in-person visit and the prescribing of certain controlled substances. Written comments on the proposed rule had to be submitted on or before January 6, 2020.
Medicaid Requirements for Telemedicine to Beneficiaries. On January 1, 2020, the Georgia Department of Community Health (“DCH”) issued Georgia Telemedicine Guidance, which can be accessed at https://www.mmis.georgia.gov/portal/PubAccessProviderInformation/ProviderManuals/tabid/54/Default.aspx (see pp. 4-10 and 53).
Currently, the Georgia Telemedicine Guidance requires the following for telehealth services rendered to Medicaid beneficiaries:
- The practitioner must be licensed in Georgia.
- GT modifier and POS 02 need to be used for billing and coding of the professional services.
- The telehealth services must be provided through interactive two-way video/audio communication methods.
- Written consent must be obtained (a form is contained in the Georgia Medicaid guidance).
- If the patient is a minor, the parent/guardian must be present and sign the consent form.
- The telehealth visit must be documented to substantiate the services and noted that it was rendered via telehealth, identify the location of the originating site (e.g., patient home) and distant site.
- Telehealth services provided via webcam or internet-based technologies like Skype that are not part of a secured network and do not meet HIPAA encryption compliance will not be covered. (This guidance currently differs from a recent federal policy change. So we are waiting to see whether DCH will consider waiving any of these requirements.)
As of this writing, DCH has not changed this Guidance in light of the coronavirus pandemic. But we plan to update this webpage if additional information becomes available.
COVID-19 Emergency Practice, Telehealth & Teleprescribing Measures
GCMB Board Emergency Practice Permits for Telemedicine. On March 5, 2020, the Georgia Medical Board announced that it would issue emergency practice permits to previously unlicensed physicians, physician assistants, advance practice registered nurses, and respiratory care professionals who wish to practice medicine during the COVID-19 emergency response. Those permits will be valid from the Board’s approval of the application until the earlier of 90 days or until the governor lifts the statement of emergency and can be accessed at: https://medicalboard.georgia.gov/document/document/emergency-practice-permit-application2020/download.
As of this writing, the requirements for these applicants and currently-licensed physicians and other Board-licensed providers providing telehealth services remain as set forth in the Georgia Rules & Regulations 360-3-.07:
- All treatment and/or consultations must be done by Georgia licensed practitioners.
- A history of the patient must be available to the Georgia licensed physician, PA or APRN (the “GA Provider”) who is providing the treatment and/or consultation.
- The GA Provider must either: a) have personally seen and examined the patient and provide ongoing or intermittent care by electronic or other means (e.g., primary physician of patient); or b) is providing medical care by electronic or other means at the request of the GA Provider who has personally seen or examined the patient (e.g., fellow GA Provider); or c) providing medical care at the request of a Public Health Nurse, Public School Nurse, DFCS, law enforcement or community medical health center, and the GA Provider is able to examine the patient using technology and peripherals equal or superior to an examination done personally by a provider within that provider’s standard of care; or d) is able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by a provider within that provider’s standard of care.
- The GA Provider maintains patient records on the patient and must document: (a) the evaluation and treatment; (b) identity of the GA Providers providing services by electronic or other means; and (c) whether there is a referring practitioner (if so, a copy of the records must be sent to the referring practitioner).
- If a physician will delegate to an NP or PA the ability to provide telemedicine services, the physician must document to the board that the provision of telemedicine services is within his or her scope of practice and that the NP or PA has demonstrated competence in the provision of care by telemedicine.
- Must give patients who are receiving telemedicine services the name, credentials, and emergency contact information for the GA Provider and instructions on follow-up in the event of needed emergent care related to the treatment.
- The GA Provider must make diligent efforts to have the patient seen and examined in-person by a GA licensed physician, PA or NP at least annually.
Medical Board Requirements for Teleprescribing. On March 19, 2020, the Board issued Ga. R & Regs. §360-3-.08, allowing for electronic prescribing during the emergency. This modification allows DEA registered practitioners to issue prescriptions for controlled substances for patients for whom they have not conducted an in-person medical evaluation as long as:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice.
- The telemedicine communication is conducted using an audio-visual, real team, two-way interactive communication system; and
- The practitioner is acting within federal and state law and otherwise following the telemedicine provisions outlined in Ga. R. & Regs. §360-3-.07.
This waiver does not address the 72-hour supply of non-controlled substances medication called for under Ga. R. & Regs. §360-3-.07. So we are waiting to see whether the Board intends to modify that rule as well.
In a press conference on March 23, 2020, Gov. Kemp gave an update on the status of COVID-19 in Georgia and issued an Executive Order expanding temporary licensing of certain medical professionals whose licenses lapsed or expired within the previous 5 years. The Order (which can be accessed here) is limited to licenses that have no history of administrative action adverse to the licensee. It also is limited to medical treatment of victims of the existing public health emergency, and is solely for the duration of the Public Health State of Emergency.
Georgia Composite Medical Board Updates Related to COVID-19
As of April 2, 2020, the GCMB had issued the following additional updates in response to the pandemic:
- The rule that states that supervision of physician assistants is allowed in situations where a need for medical care exists or at a relief site was extended from 48 hours to the length of the duration of the COVID-19 emergency.
- The emergency telemedicine rule was amended to allow for audio-only communication and suspend the requirement for physicians to provide documentation of a PA’s or nurse practitioner’s competence in telemedicine.
- CME requirements are reduced by 20 hours for the current licensure renewal cycle due to specialty conferences being canceled this year.
- The Board granted six-month extensions for perfusionists with temporary licenses who are unable to take the licensure exam due to COVID-19 and 90-day extensions for respiratory care professionals whose license will expire during the COVID-19 public health emergency.
Federal Loosening of Telehealth Rules in Response to Coronavirus Pandemic
On March 17, 2020, the Trump administration announced that, due to the COVID-19 crisis, Medicare providers may now use telephone and video conference, including FaceTime and Skype, to see patients, without penalties. This relaxation of federal rules includes blanket HIPAA waivers, as well as Medicare reimbursement for such services. HHS’s OIG Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Health Care Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (“COVID-19”) Outbreak can be accessed at: https://go.usa.gov/xdtXC and the government’s fact sheet is available at: https://go.usa.gov/xdtXT.
On March 18, 2020, the American Health Law Association’s In-House Counsel and Public Health System Affinity Group of the Hospitals and Health Systems Practice Groups published a Bulletin (excerpted below), summarizing federal and state government responses to the coronavirus pandemic, and how telehealth is being expanded to address the COVID-19 outbreak. The full AHLA Bulletin can be accessed here.
As the health care system braces for a surge of COVID-19 patients, state and federal governments are increasingly looking to telehealth for help. During the last few weeks, medical providers across the United States started, revamped, or expanded their virtual care capabilities. Public health experts, including the Centers for Disease Control and Prevention, agree that a wider adoption of telecommunications in patient care will improve hospital capacity by preventing the additional spread of the virus. In the face of a global pandemic, federal legislators, state governors, and regulators around the country are acting in concert to leverage telehealth.
The policy changes include:
- Expansion of reimbursement for telehealth services, including federal waiver of existing Medicare Fee-for-Service (FFS) restrictions that will last for the duration of the national emergency;
- Greater cross-state licensure exemptions during the outbreak to allow health care providers to render services, including telehealth services, across state lines;
- Enforcement flexibility that will allow providers to offer free telehealth services through widely-available smart phone applications, like Skype and FaceTime; and
- Relaxation of certain limitations to online prescribing to drop initial in-person visit requirements under certain circumstances.
These policy changes reflect the recognition at national and local levels that telehealth will be critical in helping to limit further exposure and stop the spread of COVID-19 in health care settings. In addition, the significant opportunities arising for virtual care, which is at the forefront of the fight against coronavirus, may transform telehealth forever.
Federal Government Expands Medicare Coverage for Telehealth During Emergencies
Existing Medicare Fee-For-Service Reimbursement
The lack of Medicare reimbursement for telehealth is a key roadblock to wider adoption. For decades, Medicare reimbursement for telehealth services was limited to certain circumstances. A patient receiving telehealth services was required to be at an “eligible originating site,” meaning that the patient had to be located in a rural area and in a medical facility. Under these requirements, telehealth services are reimbursable by Medicare only when a beneficiary is at a qualifying “originating site,” meaning a health care facility or doctor’s office in a county located outside of a Metropolitan Statistical Area or that is located in a rural Health Professional Shortage Area, and when provided via an “interactive telecommunications system.” See 42 CFR 410.78(a)(3), (a)(4), (b)(1), (b)(3), (b)(4).The patient’s home was not considered an eligible originating site. In other words, telehealth services provided to a patient located at home were not reimbursable by Medicare under this framework.
Medicare expanded reimbursement for telehealth services incrementally over the past few years. For example, it allowed reimbursement for: (1) brief, patient-initiated communications with a health care practitioner known as “Virtual Check-Ins” with existing patients, and (2) non-face-to-face, patient-initiated communications through an online patient portal, known as “E-Visits.” The most recent appropriations bill removed key restrictions imposed upon virtual care to address the COVID-19 national emergency.
Congressional Expansion of Telehealth to Curb Coronavirus
As part of the federal government’s initial response to the growing pandemic, the bipartisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 appropriated $500 million to telehealth reimbursement, opening the door for the Centers for Medicare & Medicaid Services (CMS) to expand telehealth coverage. The new law amended Section 1135 of the Social Security Act by authorizing the Department of Health and Human Services (HHS) to issue waivers that remove traditional limitations for telehealth in an emergency area during an emergency period. Under the statute, the telehealth waiver authority was automatically triggered by the COVID-19 pandemic.
CMS Guidance on “Blanket” Telehealth Waiver Under Section 1135
On March 16, 2020, CMS exercised its newly granted authority under Section 1135 of the Social Security Act (Section 1135 waiver) to expand telehealth services during the COVID-19 emergency. Clinicians can bill immediately for dates of service starting March 6, 2020. The Section 1135 waiver allows for the following:
- Patient’s Home or Another Facility Can Be an Originating Site. First, the “eligible originating site” requirement no longer needs to be satisfied, meaning that telehealth services may be provided to Medicare beneficiaries regardless of patient location—including at the patient’s home or a physician’s office, hospital, nursing home, or rural health clinic. Under the Section 1135 waiver, Medicare beneficiaries will be able to visit with their doctor from their home, without having to go to a health care facility, and can better avoid putting themselves and others at risk.
- Smart Phones. The Medicare program’s prohibition on telephones was removed for the duration of the outbreak. Current Medicare rules do not permit telephones to be used for telehealth services. Now, so long as the telephone has audio and video capabilities used for two-way, real-time interactive communication, it can be utilized during the COVID-19 pandemic.
- Wide Range of Telehealth Services Available. Notably, the legislation applies to telehealth services during this period without regard to the treatment or diagnosis of the patient. Medicare beneficiaries may receive a range of telehealth services, including typical office visits for evaluation/management, mental health counseling, and preventive health screenings.
- New Patients Are Likely Permissible. On the issue of whether providers can be reimbursed for telehealth services provided to a new patient (i.e., through the Emergency Department), CMS is asking providers to ignore the statutory language that limits the waiver to current patients. The statutory language requires that there be a pre-existing relationship with the patient receiving telehealth services. CMS assures providers that it will not conduct audits to verify that such a prior relationship existed for claims submitted during this emergency period….
Other Telehealth Reimbursement
Many states continue to restrict Medicaid reimbursement to limited circumstances, but this may also change as telehealth becomes the most viable option for access to care. In efforts to combat the virus, state governors and public health leaders have announced expansions in Medicaid reimbursement in many states. For example, New York has expanded telehealth coverage and reimbursement for disabilities services under Medicaid. It is also important to remember that many state Medicaid managed care plans already authorize telehealth, and some states have already required parity in payment for telehealth. Irrespective of the availability of reimbursement, it is also worth noting that licensure, supervision, and professional judgement are still required, and professional standards of care have not changed.
Loosening of Jurisdictional Licensing Restrictions
Recognizing that the virus does not discriminate by state line, both state and federal regulators are removing licensing barriers for health care providers to care for COVID-19 patients. HHS issued a separate 1135 waiver of the requirement that “physicians or other health care professionals hold licenses in the state in which they provide services if they have an equivalent license from another state.”
State leaders and medical boards are similarly beginning to loosen their restrictions regarding cross-state licensure. For example, New York is permitting unlicensed individuals, upon completion of training deemed adequate by New York’s Commissioner of Health, to collect throat or nasopharyngeal swab specimens from individuals suspected of being infected for purposes of testing. Certain state governors and medical boards are removing home state licensing restrictions altogether. In California, licensure requirements are waived for any out-of-state medical personnel that come to California to provide health care services in an effort to assist in preparation for, respond to, mitigate the effects of, and recover from COVID-19. These efforts are all aimed to increase staffing and the capacity to care for COVID-19 patients. (Note that while interstate coverage requirements of individual clinicians are being loosened, there has been no recognition of the complexity of entities – such as medical practices – performing services across state lines, and there has been no guidance to date or relaxation of requirements for a medical group or other professional entity to do business in another state.)
Enforcement Discretion to Encourage Telehealth
Given the importance of social distancing and other strategies recommended to reduce the risk of COVID-19 transmission, federal enforcement agencies are giving providers more flexibility, including by allowing providers to offer telehealth services for free and/or making it easy-to-use.
- No Copay/Deductible/Coinsurance Payment for Medicare and Medicaid Beneficiaries. The HHS Office of Inspector General (OIG), the agency that spearheads enforcement of federal fraud and abuse laws, issued a Policy Statement explaining its position that providers may waive cost-sharing obligations (i.e., coinsurance and deductibles) for telehealth services during the emergency period. Routine reductions or waivers of costs by Medicare or Medicaid beneficiaries trigger the federal Anti-Kickback Statute and the Civil Monetary Penalties Law. In addition, CMS, in consultation with the OIG, issued a memo to Medicare Advantage Organizations (MAOs), advising that MAOs may expand telehealth programs and may also routinely waive cost-sharing payments.
- HIPAA Flexibility. HHS Office for Civil Rights (OCR) announced that it will not impose penalties for violations of certain Heath Insurance Portability and Accountability Act (HIPAA) rules, including the lack of a Business Associate Agreement between the provider and the technology vendor, effective on March 17, 2020. OCR confirmed that health care providers may serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency without fear of HIPAA enforcement. This flexibility does not apply to the use of public-facing technologies such as Facebook Live, Twitch, or similar video communication apps.
- Drug Enforcement Administration (DEA) Emergency Flexibility: No In-Person Visit for Prescriptions. Health care practitioners that are DEA-registered may issue prescriptions for controlled substances to patients with whom they have not conducted an in-person visit. The prescription must be for a legitimate medical purpose and the telemedicine communication must use live-video.
It appears that federal and state governments and enforcement agencies will continue to find ways to expand much needed access to care during the COVID-19 pandemic. Providers should begin planning their telehealth strategies now to prepare for hospital surges, reduction of physician office visits, or find alternatives to in-office care, such as remote visits. In the fight against the novel coronavirus, providers have more flexibilities and freedom on coverage, modality of technology used, and location of the patient.
- Answering 20 Questions About COVID-19, Centers for Disease Control and Prevention, March 18, 2020: https://emergency.cdc.gov/epic/learn/2020/webinar_20200318.asp; https://emergency.cdc.gov/epic/pdf/slides_031820_Questions_about_COVID-19.pdf
- Medicare Telehealth Frequently Asked Questions, Centers for Medicare & Medicaid Services, March 17, 2020: https://edit.cms.gov/files/document/medicare-telehealth-frequently-asked-questions-faqs-31720.pdf
- Medicare Telemedicine Health Care Provider Fact Sheet, Centers for Medicare & Medicaid Services, March 17, 2020: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet
- Executive Order No. 202, Declaring a Disaster Emergency in the State of New York, March 7, 2020: https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york
- Proclamation of a State of Emergency, Executive Department of the State of California, March 4, 2020: https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf
- COVID-19 Information Page, U.S. Department of Justice, Drug Enforcement Administration, Diversion Control Unit: https://deadiversion.usdoj.gov/coronavirus.html
- OIG Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Health Care Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (COVID-19) Outbreak, March 17, 2020: https://oig.hhs.gov/fraud/docs/alertsandbulletins/2020/policy-telehealth-2020.pdf
- Notification Of Enforcement Discretion For Telehealth Remote Communications During The COVID-19 Nationwide Public Health Emergency, U.S. Department Of Health & Human Services, March 17, 2020: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html
On March 17, 2020, CMS issued an FAQ on telehealth, which includes a list of HCPCS codes that are eligible for telehealth services under the emergency declaration and waivers. The FAQ makes clear that the waiver temporarily eliminates the requirement that the originating site must be at a physician’s office or other authorized facility and allows Medicare to pay for telehealth services when beneficiaries are in their homes or any care setting. Moreover, CMS makes clear that it will not enforce the typical “established relationship” requirement, and that the telehealth services subject to the temporary waiver are not limited to services related to patients with COVID-19.
On April 2, 2020, CMS released an informational bulletin identifying opportunities for using telehealth to increase rural and other access to Medicaid services and treatment for substance use disorders, including during the COVID-19 emergency. An American Hospital Association summary of CMS’s COVID-19 waivers is available here. A document comparing telehealth guidance from the GCMB, Medicaid and Medicare can be accessed here. Prepared by the Georgia Hospital Association, it summarizes guidance on patient and provider location requirements, who can practice telehealth, permitted technologies, prescribing and more.
Providers of telehealth services in Georgia must navigate and comply with numerous laws, rules and regulations governing telemedicine licensing, practice standards, controlled substances and reimbursement. But if they do so, patients, providers and payers can all benefit, with high-quality healthcare delivered in a more cost-effective manner.
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