The Georgia Telehealth Act was enacted in 2005 at O.C.G.A. § 33-24-56.4.  The statute enabled the practice of “telemedicine,” the delivery of clinical health care services by means of real time two-way audio, visual, or other telecommunications or electronic communications. 

Due in large part to the COVID-19 outbreak, The State Board of Workers’ Compensation officially added telemedicine to the fee schedule on April 1, 2020.  The Board’s telehealth guidelines allow providers to offer telemedicine services in non-emergent cases, so long as both the claimant and the employer/ third-party administrator (TPA) agree.  Since some treatment is better than none, in the next several weeks, employers and TPAs who are interested in having claimants receive treatment through telemedicine should work out agreements with claimants on how treatment will move forward.  Should an employee and/or the employee’s attorney not cooperate as much as you expect they should, then you always have the option of filing a petition for medical treatment and having a call with the judge.  In these times, especially in the short term, agreement is most effective. 

The guidelines indicate which services are eligible.  When providing telemedicine services, the providers must add modifier -95 to the CPT codes.  The providers must be reimbursed the same amount as if the patient was treated in-person.  For telemedicine services provided prior to April 1, 2020, the parties are supposed to negotiate the reimbursement.  

We can expect that the use of telemedicine services will continue to expand after the COVID-19 predicament is over.  Providers who wish to offer telemedicine services must observe numerous state and federal laws and regulations, of which some of the most common are discussed below. 

Georgia Composite Medical Board (GCMB) Rule 360-3-.07

This rule allows a Georgia licensed physician, physician assistant, or advanced practice registered nurse to provide telemedicine services where the provider a) has personally seen and examined the patient; b) is providing telemedical care at the request of a Georgia-licensed provider who has personally seen and examined the patient; c) is providing telemedical care at the request of a Public Health Nurse, a Public School Nurse, the Division 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 provider is able to examine the patient using technology and peripherals that are equal or superior to an examination done personally by that provider; or d) is able to examine the patient using equipment that is equal or superior to an examination done personally by that provider.

Telemedicine practitioners are held to the same standard of care as those employing traditional in-person care.  A telemedicine practitioner must have access to the patient’s history and maintain records of a patient’s evaluation and treatment.  Additionally, the Rule does not authorize the prescription of controlled substances for the treatment of pain or chronic pain based on a telemedicine evaluation.  Therefore, all prescriptions for opioid painkillers require an in-person appointment as required by GCMB Rule 360-3-.06.

According to GCMB Emergency Rule 360-3-0.10-.08, however, DEA registered providers may prescribe controlled substances to patients for whom they have not conducted an in-person medical evaluation during the Public Health State of Emergency related to COVID-19, so long as a) the prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice; b) the telemedicine communication is conducted using an audio-visual or audio only, real time, two-way interactive communication system; and c) the practitioner is acting within Federal and State law and otherwise following the provisions of GCMB Rule 360-3-.07.  This rule is effective only during the COVID-19 Public Health State of Emergency.

O.C.G.A. § 43-34-31.1- Licensing of Telemedicine Physicians

This statute was passed by the Georgia General Assembly in 2019 and authorizes the GCMB to issue telemedicine licenses to physicians who are licensed in other states, but not licensed in Georgia, to engage in the practice of medicine through telemedicine in Georgia.  In early 2020, the GCMB set forth the requirements for telemedicine licenses in GCMB Rule 360-2-.17.  The Rule has been sent to the Governor’ Office for approval.  If approved, telemedicine licenses will be available to physicians who hold a full and unrestricted license in another state.  

HIPAA and the HITECH Act.    

The HIPAA Privacy Rule sets forth guidelines for the use and disclosure of patients’ protected health information (PHI).  The HIPAA Security Rule in 45 C.F.R. 164 extends the protections of the Privacy Rule to electronic PHI (ePHI).  The Security Rule requires covered entities and their business associates to protect against any reasonably anticipated threats or hazards to the security or integrity of ePHI, to protect against any reasonably anticipated uses or disclosures of ePHI that are not permitted or required, and to ensure compliance by its workforce.  The provisions of the Security Rule are enforced by the Department of Health and Human Service’s Office of Civil Rights (OCR).  There are significant civil and criminal penalties for entities that violate the Security Rule’s guidelines. 

The HITECH Act amended the Privacy Rule and Security Rule in 2013 by providing additional rules for breach notification and enforcement.  HITECH expands the definitions of business associate and makes business associates and their subcontractors directly liable for violations of the Privacy Rule and Security Rule.  Civil monetary fines were increased according to a violator’s culpability to an annual maximum of $1,500,000. 

During the COVID-19 nationwide public health emergency outbreak, the OCR announced that it will exercise its enforcement discretion and will not pursue otherwise applicable penalties for data breaches that result from the good faith provision of telehealth services.  When the emergency is over, however, we are happy to assist providers in understanding the regulatory requirements and complying with them.