Chapter 360-3 INVESTIGATIONS AND DISCIPLINE
The Georgia Composite Medical Board ("Board") is authorized to
deny, revoke, suspend, fine, reprimand or otherwise limit the license of a
physician or physician assistant for all the grounds set forth in O.C.G.A.
§ 43-34-8
and to deny, revoke, suspend, fine, reprimand or otherwise limit the license of
a physician pursuant to O.C.G.A. § 43-34-8.
In addition, the Board is authorized to terminate the approval of a physician's
assistant and to revoke the license of a physician's assistant pursuant to
O.C.G.A. § 43-34-107.
O.C.G.A §§ 43-1-19
and
43-34-37
authorize the Board to take disciplinary action against licensees for
unprofessional conduct. "Unprofessional conduct" shall include, but not be
limited to, the following:
| (1) |
Prescribing controlled substances for a known or suspected habitual drug abuser
or other substance abuser in the absence of substantia l
justification. |
| (2) |
Writing
prescriptions for controlled substances for personal use or, except for
documented emergencies, for immediate family members. For purposes of this
rule, "immediate family members" include spouses, children, sib lings, and
parents. |
| (3) |
Prescribing, ordering,
dispensing, administering, selling or giving any amphetamine, sympathomimetic
amine drug or compound designated as a Schedule II Controlled Substance under
O.C.G.A. T. 16, Ch. 13, to or for any person except in the following
situations:
| (a) |
Treatment of any of the
following conditions:
| 1. |
Attention deficit
disorder; |
| 2. |
Drug induced brain
dysfunction; |
| 3. |
Narcolepsy and/or
hypersomnolence; |
| 5. |
Depression or other
psychiatric diagnosis. |
| 6. |
Weight
loss management, if drug has been approved by the FDA for that
indication. |
|
| (b) |
For
clinical investigations conducted under protocols approved by a state medical
institution permitted by the Georgia Department of Human Services (DHS) with
human subject review under the guidelines of the United States Department of
Health and Human Services. |
|
| (4) |
Pre-signing prescriptions that have the
patient's name, type of medication, or quantity blank. |
| (5) |
Prescribing controlled substances
(O.C.G.A. T. 16, Ch. 13, Art. 2) and/or dangerous drugs (O.C.G.A. T. 16, Ch.
13, Art. 3) for a patient based solely on a consultation via electronic means
with the patient, patient's guardian or patient's agent. This shall not
prohibit a licensee from prescribing a dangerous drug for a patient pursuant to
a valid physician patient relationship in accordance with O.C.G.A.
33-24-56.4
or a licensee who is on-call or covering for another licensee from prescribing
up to a 30-day supply of medications for a patient of such other licensee nor
shall it prohibit a licensee from prescribing medications when documented
emergency circumstances exist.
This shall also not prevent a licensed physician from
prescribing Schedule II sympathomimetic amine drugs for the treatment of
attention deficit disorder to a patient in the physical presence of a licensed
nurse, provided the initial diagnosis was made and an initial prescription was
issued in accordance with
21
U .S .C. § 829(e), as
amended from time to time, including but not limited to the following:
| (a) |
The physician has conducted at least one
in-person medical evaluation of the patient; or |
| (b) |
The physician is covering for a licensee
who is temporarily unavailable and has conducted at least one in-person medical
evaluation of the patient; or |
| (c) |
The physician is engaged in the practice of telemedicine in accordance with
Board Rule
360-3-.07 and with
21
U.S.C. §§ 802(54)
and 829Ce )(3)(A), including, but not limited to:
| 1. |
Where the patient is being treated by, and
physically located in, a hospital or clinic registered with the U.S. Drug
Enforcement Agency ("DEA"), the physician is registered with the DEA, and all
other requirements of
21
U.S.C. § 802(54)(A) are
met; or |
| 2. |
Where the patient is
being treated by, and physically in the presence of, a licensee who is
registered with the DEA, and all other requirements of
21 U
.S .C. § 802(54)(B) are
met; or |
| 3. |
Where the physician has
obtained from the U.S. Attorney General a special registration for telemedicine
in accordance with
21
U.S.C. §§ 802(54)(E) and
831(h). |
|
|
| (6) |
Providing treatment via electronic or
other means unless a history and physical examination of the patient has been
performed by a Georgia licensee. This shall not prohibit a licensee who is on
call or covering for another licensee from treating and/or consulting a patient
of such other licensee. Also, this paragraph shall not prohibit a patient's
attending physician from obtaining consultations or recommendations from other
licensed health care providers. |
| (7) |
Failing to maintain appropriate patient records whenever Schedule II, III, IV
or V controlled substances are prescribed. Appropriate records, at a minimum,
shall contain the following:
| (a) |
The patient's
name and address; |
| (b) |
The date,
drug name, drug quantity, and patient's diagnosis necessitating the Schedule
II, III, IV, or V controlled substances prescription; and |
| (c) |
Records concerning the patient's
history. |
|
| (8) |
Committing
any act of sexual intimacy, abuse, misconduct, or exploitation of any
individual related to the physician's practice of medicine regardless of
consent. The rule shall apply to former patients where the licensee did not
terminate in writing the physician patient relationship before engaging in a
romantic or sexual relationship with the patient and/or where the licensee used
or exploited the trust, knowledge, emotions or influence derived from the prior
professional relationship. The Board will consider the physician patient
relationship terminated if the physician has not evaluated or treated the
patient for a period of at least two (2) years. |
| (9) |
Failing to comply with the provisions of
O.C.G.A. Section
31-9-6.1
and Chapter 360-14 of the Rules of Georgia Composite Medical Board relating to
informed consent, which requires that certain information be disclosed and that
consent be obtained regarding any surgical procedure performed under general
anesthesia, spinal anesthesia, or major regional anesthesia or an amniocentesis
procedure or a diagnostic procedure that involves the intravenous injection of
a contrast material. |
| (10) |
Failing
to conform to the recommendation of the Centers for Disease Control for
preventing transmission of the Human Immunodeficiency Virus, Hepatitis B Virus,
Hepatitis C Virus, and Tuberculosis to patients during exposure-prone invasive
procedures. It is the responsibility of all persons currently licensed by the
Board to maintain familiarity with these recommendations, which the Board
considers the minimum standards of acceptable and prevailing medical
practice. |
| (11) |
Failing to timely
respond to an investigative subpoena issued by the Board. |
| (12) |
Conducting a physical examination of the
breast and/or genitalia of a patient of the opposite sex without a chaperone
present. |
| (13) |
Practicing medicine
while mentally, physically, or chemically impaired. |
| (14) |
Failing to use such means as history,
physical examination, laboratory, or radiographic studies, when applicable, to
diagnose a medical problem. |
| (15) |
Failing to use medications and other modalities based on generally accepted or
approved indications, with proper precautions to avoid adverse physical
reactions, habituation, or addiction in the treatment of patients. However,
nothing herein shall be interpreted to prohibit investigations conducted under
protocols approved by a state medical institution permitted by DHS and with
human subject review under the guidelines of the United States Department of
Health and Human Services. |
| (16) |
Failing to maintain patient records documenting the course of the patient's
medical evaluation, treatment, and response.
| (a) |
A physician shall be required to maintain
a patient's complete medical record, which may include, but is not limited to,
the following: history and physical, progress notes, X-ray reports,
photographs, laboratory reports, and other reports as may be required by
provision of the law. A physician shall be required to maintain a patient's
complete treatment records for a period of no less than 10 years from the
patient's last office visit. |
| (b) |
The requirements of this rule shall not apply to a physician who has retired
from or sold his or her medical practice if:
| 1. |
such physician has notified his or her
active patients of retirement from or sale of practice by mail, at the last
known address of his or her patients, offering to provide the patient's records
or copies thereof to another provider of the patient's choice and, if the
patient so requests, to the patient; |
| 2. |
has caused to be published, in the
newspaper of greatest circulation in each county in which the physician
practices or practiced and in a local newspaper that serves the immediate
practice area, a notice which shall contain the date of such retirement or sale
that offers to provide the patient's records or copies thereof to another
provider of the patient's choice, and if the patient so requests, to the
patient; and |
| 3. |
has placed in a
conspicuous location in or on the facade of the physician's office, a sign
announcing said retirement or sale of the practice. The sign shall be placed 30
days prior to retirement or the sale of the practice and shall remain until the
date of retirement or sale. |
| 4. |
Both
the notice and sign required by rule 360-3-.02 shall advise the physician's
patients of their opportunity to transfer or receive their
records. |
|
| (c) |
The period
specified in this rule may be less than the length of time necessary for a
physician to protect himself or herself against other adverse actions.
Therefore, physicians may wish to seek advice from private counsel or their
malpractice insurance carrier. |
|
| (17) |
Continuing to practice after the
expiration date of the license. |
| (18) |
Any other practice determined to be
below the minima l standards of acceptable and prevailing practice. |
| (19) |
Providing a false, deceptive or
misleading statement(s) as a medical expert. |
| (20) |
Failing to report to the Board within 30
days of becoming unable to practice medicine with reasonable skill and safety
by result of illness or use of alcohol, drugs, narcotics, chemicals, or any
other type of material, or as a result of any mental or physical condition,
unless the physician has reported to the Physician Health Program. |
| (21) |
(For a physician) Delegating the
injection of botulinum toxin and/or dermal fillers to medical
assistants. |
The Georgia Composite Medical Board is authorized to take
disciplinary action for violations of laws and rules and regulations which
relate to or in part regulate the practice of medicine. These laws, rules and
regulations include, but are not limited to, the following:
| (1) |
The Georgia Medical Practice Act
(O.C.G.A. T. 43, Ch. 34); |
| (2) |
The
Georgia Controlled Substances Act (O.C.G.A. T. 16, Ch. 13, Art. 2); |
| (3) |
The Georgia Dangerous Drug Act (O.C.G.A.
T. 16, Ch. 13, Art. 3); |
| (4) |
The
Federal Controlled Substances Act (21 U.S.C. Ch. 13); |
| (5) |
The Georgia Pharmacists and Pharmacies
Act (O.C.G.A. T. 26, Ch. 4); |
| (6) |
The Rules of the Georgia Composite Medical Board, Ch. 360, Rules and
Regulations of the State of Georgia; |
| (7) |
The Rules of the Georgia State Board of
Pharmacy, Ch. 480, Rules and Regulations of the State of Georgia, in particular
those relating to the prescribing and dispensing of drugs; |
| (8) |
The Code of Federal Regulations Relating
to Controlled Substances (21 C.F.R. par. 1306); and |
| (9) |
O.C.G.A. Section
31-9-6.1
and Chapter 360-14 of the rules of the Georgia Composite Medical Board relating
to informed consent. |
For the purpose of this rule person means an individual that
holds a license, certificate, or permit issued by the Board or who has applied
for a license, certificate, or permit.
| (1) |
The Board may, require a licensee or
applicant to submit to a mental and physical examination by a physician or
evaluation program approved by the Board. Mental or physical evaluations may be
performed on an inpatient or outpatient basis as directed by the Board. The
costs of the evaluation are the responsibility of the person being
evaluated. |
| (1) |
It shall be grounds for disciplinary
action by the Board if a physician aids or abets another person in
misrepresenting his/her credentials or engaging in unlicensed practice.
Engaging in unlicensed practice includes delegation by a physician of
professional responsibilities to a person who is not authorized to provide such
services. A physician may delegate the performance of certain medical tasks to
an unlicensed person with appropriate supervision as provided herein.
| (a) |
Medical Assistants
| 1. |
For purposes of this rule, a medical
assistant is an unlicensed person employed by the physician to whom he or she
delegates certain medical tasks.
| (i) |
A
physician may delegate to a medical assistant the following medical tasks:
subcutaneous and intramuscular injections; obtaining vital signs; administering
nebulizer treatments; or removing sutures and changing dressings. |
| (ii) |
Physicians or physician assistants under
basic job description and/or advanced practice nurses under protocol must be
on-site for a medical assistant to administer subcutaneous and intramuscular
injections, to administer nebulizer treatments, and to remove sutures and
change dressings. It is not required for a physician to be on-site for a
medical assistant to obtain vital signs. |
| (iii) |
Physician shall only allow medical
assistants to provide services for which they have been properly trained.
Physicians shall maintain accurate and complete records of professional
services rendered. |
| (iv) |
Nothing in
this rule prohibits the performance of tasks by medical assistants that would
not otherwise require a license. |
|
|
| (b) |
Polysomnography
| 1. |
Definitions
| (i) |
"Polysomnography" means the treatment,
management, diagnostic testing, control, education, and care of patients with
sleep and wake disorders. Polysomnography includes, but is not limited to, the
process of analysis, monitoring, and recording of physiologic data during sleep
and wakefulness to assist in the treatment of disorders, syndromes, and
dysfunctions that are sleep related, manifest during sleep, or disrupt normal
sleep activities. Polysomnography also includes, but is not limited to, the
therapeutic and diagnostic use of low-flow oxygen, the use of positive airway
pressure including continuous positive airway pressure (CPAP) and bi-level
modalities, adaptive servo-ventilation, and maintenance of nasal and oral
airways that do not extend into the trachea. |
| (ii) |
"Polysomnographic technologist" means
any person performing polysomnography services under the supervision of a
physician licensed under this article without the requirement that the
technologist is licensed. |
| (iii) |
"Supervision" means that the supervising physician licensed under this article
shall remain available, either in person or through telephonic or electronic
means, at the time that polysomnography services are provided. |
|
| 2. |
Delegation of Duties
| (i) |
Physicians may delegate to a
polysomnography technologist to perform tasks to treat, manage, control,
educate, or care for patients with sleep or wake disorders or to provide
diagnostic testing for patients with suspected sleep or wake
disorders. |
| (ii) |
However, the
physician may not delegate tasks that constitute the practice of
medicine. |
|
|
| (c) |
Radiologist Assistant
| 1. |
Radiologist Assistant
means an advanced level certified diagnostic radiologic technologist who
assists radiologists under levels of supervision in performing advanced
diagnostic imaging procedures including, but not limited to, enteral and
parenteral procedures when performed under the direction of the supervising
radiologist and may include injecting diagnostic agents to sites other than
intravenous, performing diagnostic aspirations and localizations, and assisting
radiologists with other invasive procedures.
| (i) |
Supervision
| (I) |
Radiology assistants shall be supervised
by a physician licensed under O.C.G.A. 43-34 who has experience in performing
advanced diagnostic imaging procedures.
| I. |
Exemptions or Limitations |
|
|
|
| 2. |
This Code section is for definitional
purposes only and shall not be construed to require any duties or obligations
regarding radiology assistants that did not already exist as of June 30,
2009. |
|
|
| (1) |
Definitions. As used in this
rule, the following terms shall mean:
| (a) |
"Annual patient population" shall mean those patients seen by a clinic or
practice in a twelve month calendar year, but shall not include patients that
are in-patient in hospital, nursing home or hospice facilities licensed
pursuant to O.C.G.A. T. 31, Ch. 7. |
| (b) |
"Board" shall mean the Georgia Composite
Medical Board. |
| (c) |
"Chronic pain"
shall mean pain requiring treatment which has persisted for a period of ninety
days or greater in a year, but shall not include perioperative pain, i.e., pain
immediately preceding and immediately following a surgical procedure, when such
perioperative pain is being treated by a physician in connection with a
surgical procedure. |
| (d) |
"Monitoring" means any method to assure treatment compliance including but not
limited to the use of pill counts, pharmacy or prescription program
verification. Monitoring must include a urine, saliva, sweat, or serum test
performed on a random basis. |
| (e) |
"Terminal condition" means an incurable or irreversible condition, which would
result in death in a relatively short period of time. |
|
| (2) |
O.C.G.A. § 43-34-8
authorizes the Board to take disciplinary action against licensees for
unprofessional conduct, which includes conduct below the minimum standards of
practice. With respect to the prescribing of controlled substances for the
treatment of pain and chronic pain, the Board has determined that the minimum
standards of practice include, but are not limited to the following:
| (a) |
Physicians cannot delegate the dispensing
of controlled substances to an unlicensed person. |
| (b) |
When prescribing controlled substances, a
physician shall use a prescription pad that complies with state law. |
| (c) |
When initially prescribing a controlled
substance for the treatment of pain or chronic pain, a physician shall have a
medical history of the patient, a physical examination of the patient shall
have been conducted, and informed consent shall have been obtained. In the
event of a documented emergency, a physician may prescribe an amount of
medication to cover a period of not more than 72 hours without a physical
examination. |
| (d) |
When a physician
is treating a patient with controlled substances for pain or chronic pain for a
condition that is not terminal, the physician shall obtain or make a diligent
effort to obtain any prior diagnostic records relative to the condition for
which the controlled substances are being prescribed and shall obtain or make a
diligent effort to obtain any prior pain treatment records. The records
obtained from prior treating physicians shall be maintained by the prescribing
physician with the physician's medical records for a period of at least ten
(10) years. If the physician has made a diligent effort and is unable to obtain
prior diagnostic records, then the physician must order appropriate tests to
document the condition requiring treatment for pain or chronic pain. If the
physician has made a diligent effort and the prior pain treatment records are
not available, then the physician must document the efforts made to obtain the
records and shall maintain the documentation of the efforts in his/her patient
record. |
| (e) |
When a physician
determines that a patient for whom he is prescribing controlled scheduled
substances is abusing the medication, then the physician shall make an
appropriate referral for treatment for substance abuse. |
| (f) |
When prescribing a Schedule II or III
controlled substance for 90 (ninety) consecutive days or greater for the
treatment of chronic pain arising from conditions that are not terminal or
patients who are not in a nursing home or hospice, a physician must have a
written treatment agreement with the patient and shall require the patient to
have a clinical visit at least once every three (3) months, while treating for
pain, to evaluate the patient's response to treatment, compliance with the
therapeutic regimen and any new condition that may have developed and be masked
by the use of Schedule II or III controlled substances. The requirement of a
visit at a minimum of once every three months can be waived and the clinical
visit be at least once per year if the doctor determines there is a substantial
hardship and documents such hardship in the patient's record or if the morphine
equivalent daily dose ("MEDD") is 30 mg. or less. |
| (g) |
When prescribing a Schedule II or III
controlled substance for 90 (ninety) consecutive days or greater for the
treatment of chronic pain arising from conditions that are not terminal or
patients in a nursing home or hospice, a physician must monitor compliance with
the therapeutic regimen. Patients should be randomly monitored at least
annually via bodily fluid analysis. However, body fluid analysis may be
performed more frequently than once a year, if the provider considers it to be
necessary in his/her patient population, in order to assess and assure
compliance with the prescribed treatment regimen. A clinical examination should
occur once every three (3) months, except for hardship in certain cases, which
must be well documented in the patient record. |
| (h) |
The physician shall respond to any
abnormal result of any monitoring and such response shall be recorded in the
patient's record. |
| (i) |
When a
physician determines that a new medical condition exists that is beyond their
scope of training, he/she shall make a referral to the appropriate
practitioner. |
| (j) |
Any physician who
prescribes Schedule II or III substances for chronic pain for greater than 50%
of that physician's annual patient population must document competence to the
Board through certification or eligibility for certification in pain management
or palliative medicine as approved by the Georgia Composite Medical Board
("Board"). The Board recognizes certifications in pain medicine or palliative
medicine by the American Board of Medical Specialties or the American
Osteopathic Association, the American Board of Pain Medicine and the American
Board of Interventional Pain Physicians. If the physician does not hold this
certification or eligibility he/she must demonstrate competence by biennially
obtaining 20 (twenty) hours of continuing medical education ("CME") pertaining
to pain management or palliative medicine. Such CME must be an AMA/AOA PRA
Category I CME, a board approved CME program, or any federally approved CME.
The CME obtained pursuant to this rule may count towards the CME required for
license renewal. |
|
| (a) |
Under O.C.G.A.
§§ 43-34-8
and
43-1-19,
the Board is authorized to take disciplinary action against licensees for
unprofessional conduct, and in connection therewith, to establish standards of
practice. Except as otherwise provided, in order for a physician to practice
within the minimum standards of practice while providing treatment and/or
consultation recommendations by electronic or other such means, all the
following conditions must be met:
| (1) |
All
treatment and/or consultations must be done by Georgia licensed
practitioners; |
| (2) |
A history of the
patient shall be available to the Georgia licensed physician, physician
assistant or advanced practice registered nurse who is providing treatment or
consultation via electronic or other such means; |
| (3) |
A Georgia licensed physician, physician
assistant or advanced practice registered nurse either:
| 3.a. |
Has personally seen and examined the
patient and provides ongoing or intermittent care by electronic or other such
means; or |
| 3.b. |
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; or |
| 3.c. |
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 for 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 |
| 3.d. |
Is able to examine the patient using
technology or peripherals that are equal or superior to an examination done
personally by a provider within that provider's standard of care. |
|
| (4) |
The Georgia licensed
physician, physician assistant or advanced practice registered nurse providing
treatment or consultations by electronic or other means must maintain patient
records on the patient and must document the evaluation and treatment along
with the identity of the practitioners providing the service by electronic or
other means, and if there is a referring practitioner, a copy of this record
must also be provided to the referring physician, physician assistant or
advanced practice registered nurse; |
| (5) |
To delegate to a nurse practitioner or to
supervise a physician assistant doing telemedicine, the physician must document
to the board that that the provision of care by telemedicine is in his or her
scope of practice and that the NP or PA has demonstrated competence in the
provision of care by telemedicine. |
| (6) |
Patients treated by electronic or other
such means or patient's agent must be given the name, credentials and emergency
contact information for the Georgia licensed physician, physician assistant
and/or advanced practice registered nurse providing the treatment or
consultation. Emergency contact information does not need to be provided to
those treated within the prison system while incarcerated but should be
provided to the referring provider. For the purposes of this rule,
"credentials" is defined as the area of practice and training for physicians,
and for physician assistants and advanced practice registered nurses,
"credentials" shall mean the area of licensure and must include the name of the
delegating physician or supervising physician; |
| (7) |
The patient being treated via electronic
or other means or the patient's agent must be provided with clear, appropriate,
accurate instructions on follow-up in the event of needed emergent care related
to the treatment. In the case of prison patients, prison staff will be provided
this information if the consult is provided to an inmate; and |
| (8) |
The physician, physician assistant or
nurse practitioner who provides care or treatment for a patient by electronic
or other such means must make diligent efforts to have the patient seen and
examined in person by a Georgia licensed physician, physician assistant or
nurse practitioner at least annually. |
|
| (b) |
This rule should not be interpreted to
interfere with care and treatment by telephonic communication in an established
physician-patient relationship, call coverage for established
physician-patients relationships, or telephone and internet consultations
between physicians, nurse practitioners, physician assistants, other healthcare
providers or child protection agencies. |
| (c) |
This rule does not authorize the
prescription of controlled substances for the treatment of pain or chronic pain
by electronic or other such means. All treatment of pain or chronic pain must
be in compliance with Rule
360-3-.06. |
| (d) |
Nothing in this rule shall excuse a
physician, nurse practitioner or physician assistant from ordering appropriate
laboratory or other diagnostic tests needed to make diagnoses within the
minimum standard of care. |
| (e) |
Nothing in this rule shall supersede any requirements provided for by other
rules or laws. |
| (f) |
Licensees
practicing by electronic or other means will be held to the same standard of
care as licensees employing more traditional in-person medical care. A failure
to conform to the appropriate standard of care, whether that care is rendered
in person or via electronic or other such means, may subject the licensee to
disciplinary action by the Board. |
