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Medical Records

Can a physician withhold a patient’s medical record for a past due balance for services rendered?

No, medical records should not be withheld for an unpaid balance. AMA E-7.02

Physicians (or other providers) must furnish a complete and current copy of a patient’s medical record to the patient or to a person authorized (by the patient) to have access to medical record under an advanced directive or durable power of attorney. § 31-33-2

Can a physician withhold a patient’s record until the patient pays for copies of the records?

Yes, a physician may require payment for the costs of medical records prior to providing them to patient. § 31-33-3

How quickly must a physician release requested medical records?

A physician must provide medical records to a patient within 30 days of the receipt of a records request. § 31-33-2

A covered entity must act on a request for access to medical records within 30 days. A physician must either grant access to medical records or give a justified denial of access within 30 days of receipt of the request for release. HIPAA - 45 CFR § 164.524(b)(2)

How long must a physician retain medical records?

A physician must retain medical records for at least 10 years. This does not apply to an individual provider who has retired or sold his or her practice if the provider has notified the patient of retirement/sale and offered to provide the patient’s record to another provider of the patient’s choice and, if requested, to the patient. § 31-33-2

What must a physician do with medical records upon retiring or selling a practice?

In Georgia, a physician is required to maintain a patient's complete treatment records for at least 10 years from the date of the patient's last office visit. § 31-33-2

These requirements do not apply to a physician who has retired or sold his or her medical practice if…

  • The physician has notified his or her patients of retirement or sale of practice by mail - offering to provide the patient’s records to another provider of the patient’s choice and, if requested, to the patient.
  • The physician has published a notice - containing the date of retirement or sale - that offers to provide the patient’s records to another provider of the patient’s choice and, if requested, to the patient.
  • The physician has posted a sign announcing retirement or sale of the practice. The sign must be placed 30 days prior to retirement or sale of the practice and must remain posted until the date of retirement or sale.
  • The physician has placed both the notice and sign required by Rule 360-3-.02(16)(c) and has advised patients of their opportunity to transfer or receive their records.

A physician should always seek advice from their private counsel or their malpractice insurance carrier. Rules 360-3-.02

“A patient’s records may be necessary to the patient in the future not only for medical care but also for employment, insurance, litigation, or other reasons. When a physician retires or dies, patients should be notified and urged to find a new physician and should be informed that upon authorization, records will be sent to the new physician. Records which may be of value to a patient and which are not forwarded to a new physician should be retained, either by the treating physician, another physician, or such other person lawfully permitted to act as a custodian of the records. The patients of a physician who leaves a group practice should be notified that the physician is leaving the group. Patients of the physician should also be informed of the physician’s new address and offered the opportunity to have their medical records forwarded to the departing physician at his or her new practice location. It is unethical to withhold such information upon request of a patient. If the responsibility for notifying patients falls to the departing physician rather than to the group, the group should not interfere with the discharge of these duties by withholding patient lists or other necessary information.” AMA E-7.03

Does a physician have to give medical records to third party without a subpoena or court order?

No, a physician should not release a patient’s medical records to a third party without a proper release by the patient or legally authorized individual in accordance with Georgia law, a court order, a subpoena signed by a judge, or certification that the party has placed the opposing party on notice with opportunity to object. A physician may release medical records if there is no objection from the patient after 20 days.

What should a physician do if a patient steals their own medical records?

HIPAA specifies that the data contained within a medical record belongs to the patient, but the physical form containing the data belongs to the entity responsible for maintaining the record (i.e., the physician). If a patient takes medical records without permission and will not return them upon request, the act should be treated as a normal theft and the physician should contact the police.

Does a physician have to keep a paper copy of electronically stored medical records?

No, a provider is not required to maintain separate paper copies of electronically stored records. §31-33-8(b)

Do the same laws that apply to paper copies apply to electronic medical records?

Yes, all provisions of Chapter 33 of Title 31 of the Georgia Code, including fees, apply to electronic medical records. § 31-33-8(c)

What happens to my patients’ medical records when I leave a group?

Medical records belong to the practice. Unless your employment agreement provides otherwise, you may be able to notify patients that you are leaving the practice and notify them of your new address. However, you should be very clear about what you are allowed to do regarding notification of patients when leaving the practice. It is recommended that you discuss/negotiate the process by which you will exit the practice. Request the right to notify your patients of your new address of your departure and information on how to contact you at your new location.

Patients are not prohibited from requesting that their medical record be forwarded to another physician, but a physician should be careful to avoid a breach of an employment agreement or a breach of privacy or patient confidentiality in accessing, copying, or taking patient records. AMA E-7.03

What steps should patients take who can't obtain their medical records?

In the rare event that you can’t obtain your medical records from a physician in the state for any reason, the Medical Association of Georgia (MAG) recommends that you…  

  • Mail a letter requesting a copy of your medical records to the practice at its street address – even if the office is vacant.
  • Find a new physician as soon as possible and let them know that you haven’t been able to obtain your medical records; click on the “Resources” tab at www.mag.org to find a physician in Georgia.
  • Write a summary of your health history – particularly for the last five years – so you can share this information with your new physician.   
  • Ask your pharmacist for a list of medications that you have taken for the last 18 months and determine how much prescription medicine you have left and discuss any medication that you are taking with your new physician as soon as possible. 
  • Request a copy of the claims that have been submitted on your behalf for the last 12 months from your health insurance company. This won’t serve as a substitute for your health record, but it will provide your new physician with useful information. Also let your new physician know about any pending health insurance claims.
  • Contact hospitals in your area that you believe might have access to your medical records. 
  • Send an email to Susan Moore with MAG at smoore@mag.org; MAG doesn’t have the legal authority to compel a physician to produce a patient’s medical records, but it will attempt to contact the physician on your behalf.
  • As a last resort, submit a letter of complaint to the Georgia Composite Medical Board (the agency that licenses physicians in the state), Enforcement Unit, 2 Peachtree Street, N.W., 36th Floor, Atlanta, Georgia 30303-3465.

Georgians should know that state law allows a patient or their designee to receive a copy of their medical records within 30 days; physicians are required to retain a patient’s medical records for at least 10 years from the date of the patient’s last office visit; and a medical practice cannot withhold your medical record because of a past due balance – though you might be responsible for the costs associated with copying and mailing your medical record.

Can a physician release a patient’s medical records and health information to an insurance company or third party payer without the patients consent and/or knowledge?

Yes. The amended HIPAA Privacy Rule gives health plans and self-insured employers broad authority (“regulatory permission”) to get information without a patient’s consent. Health plans and employers are also authorized to obtain, use and disclose an individual’s health information without their consent for the purpose of:

1.    Conducting due diligence that’s related to the sale or transfer of assets;
2.    Certain types of marketing;
3.    Business planning and development;
4.    Business management and general administrative activities; and
5.    Underwriting, premium rating and other activities relating to the creation, renewal or replacement of a contract of health insurance (45 CFR 164.501)

Medical practices must (are also required to) provide every patients with a notice that lets them how their personal health information will be used and disclosed. (45 CFR 164.520)

Legal

Can MAG provide legal advice to physicians?

No. MAG is more than happy to provide information about current Georgia law to member physicians, but MAG cannot provide legal advice or representation. The information provided on MAG's website or via telephone is intended to serve as useful information. It is not intended to serve as legal advice or a legal relationship. A physician should discuss legal issues with a private health care attorney and/or medical malpractice liability carrier for specific advice and recommendations.

Can MAG recommend a private health care attorney?

Yes, MAG can refer physicians to a qualified attorney. MAG will also refer practices to an outside attorney for consultations that require more than one hour of staff time. The practice will be responsible for any fees that are required by the referral attorney. MAG will not collect a fee for any referrals. MAG 530.884

Does MAG have guidelines for expert witnesses?

Yes, MAG’s expert witness guidelines include…

  • “Expert witnesses are expected to be impartial and should not adopt a position of advocacy except as a spokesman for the field of special knowledge that they represent."
  • "The physician serving as an expert witness should testify as to the practice behavior of a prudent physician." 
  • "A physician serving as an expert should have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in the active practice of such area of specialty for at least three of the last five years immediately preceding such testimony, or the teaching of such area of practice or specialty for at least half of his or her professional time as an employed member of the faculty of an accredited institution of medical education for at least three of the last five years preceding such testimony." 
  • "Prior to offering any testimony, the physician serving as an expert witness should become familiar with all pertinent data relating to the particular matter at issue in the case and should review prior and current concepts relating to the pertinent standard medical practice." 
  • "The physician serving as an expert witness should present the court with those opinions which represent the broad spectrum of medical thought and practice." 
  • "The expert should honestly describe where his or her opinions vary from common practice."
  • "The expert should not present his or her own views as the only correct ones if they differ from what might be done by other physicians."
  • "The provision of expert testimony by a physician constitutes the practice of medicine."
  • "The physician serving as an expert witness should not concern him or herself with the legal issues of the matter in question. Rather, the physician should champion what he or she believes to be the truth, not the cause of one party or another."
  • "Compensation of the physician serving as an expert witness should be reasonable and commensurate with the time and effort given to preparing for his or her deposition or court appearance." 
  • "Physicians should not accept contingency fees for serving as an expert witness.” MAG 265.994

Does MAG have a policy compendium?

Yes. Click here for MAG's policy compendium.

What does a physician need to do when they are charged with a DUI or other offense?

A physician has a duty to report any DUI or arrest or conviction to the Georgia Medical Composite Board at the time of renewal; however, it is best to do so within 30 days of the charge. Click here to go to the Georgia Composite Medical Board’s website.

What does a physician need to do when they recognize that they have developed an addictive disorder?

The physician should contact the Georgia Professional Health Program (Georgia PHP). The Georgia Composite Medical Board (the Board) partnered with Georgia PHP in June 2012, when it selected Georgia PHP, Inc. to conduct the Board’s Professional Health Program. Georgia PHP is an organization that helps physicians who have developed a substance abuse or other mental health problem during the course of their medical career. It is designed to help physicians get the help they need and protect the public.

According to Georgia PHP, their primary goal is to ensure that the professionals who return to the practice of medicine do so only if they can practice with reasonable skill and safety. Georgia PHP provides initial triage, referral to treatment, and long-term monitoring services for health care professionals with addictive disorders. To access the Georgia PHP website, click here. To find out more information about the Georgia PHP partnership, click here.

Where do I file a complaint regarding a physician in Georgia?

The Georgia Composite Medical Board accepts complaints by mail or on their website. The complaint forms can be downloaded online. Click here to view the Board’s instructions on how to file a complaint.

What does the Georgia Prescription Monitoring Program (GA PDMP) entail and how does a physician sign up?

All practitioners licensed by the Georgia Composite Medical Board who have authority to prescribe or order controlled substances can now register to access the GA PDMP. Georgia prescribers will be able to use the GA PDMP to determine which pharmacies their patients are having their prescriptions filled, and if their patients have been obtaining controlled substance prescriptions from other physicians and where those prescriptions have been filled. Prescribers will also be able to see a listing of how many controlled substance prescriptions have been filled under their name or DEA permit number. Click here to learn more about the GA PDMP. 

Are physicians in Georgia required to purchase medical malpractice liability insurance?

No, Georgia physicians are not required to have liability insurance; however, they are required to inform the Georgia Composite Medical Board of whether they do or do not have liability insurance. 43-34A-3

Fees

Can physicians charge fees to complete paperwork and forms for patients?

With the exception of Medicare and Medicaid patients, a physician may charge fees to complete patient paperwork. There is no specific Georgia law regarding this issue, patients should be notified of any such charges in advance as a courtesy. Physicians should also check their contracts with commercial insurance companies to see if the terms of the contracts prohibit of the charging of administrative fees.

Neither Medicare nor Medicaid recipients may be charged fees to complete patient paperwork.

Medicare requires physicians to provide advance notice to patients before items or services are furnished. Medicare allows physicians to charge Medicare beneficiaries (not the Medicare program) extra fees for items and services that are not covered by Medicare, as well as deductibles and coinsurance.  But charging extra fees for services already covered violates Medicare rules. The details of the Medicare rules violation may be accessed in a bulletin issued by the Office of Inspector General. Providers should exercise caution.

AMA suggests that physicians should complete simplified insurance claim forms without charge - but it is appropriate to charge for more complex or multiple forms. AMA E-6.07

Can physicians charge a missed appointment fee?

With the exception of Medicaid patients, physicians may charge patients for missed appointments. MAG believes that once patients and physicians agree upon the goals of therapy and a treatment plan, patients have a responsibility to cooperate with the physician and to keep their appointments. MAG 140.975

Medicare also allows physicians to charge Medicare beneficiaries (not the Medicare program) for items and services that are not covered by Medicare, as well as for deductibles and coinsurance. But charging extra fees for services already covered violates Medicare rules. Additionally, Medicare allows a practice to bill Medicare beneficiaries (not the Medicare program) for “no show” patients as long as the practice does the same for non-Medicare patients. 

Neither Medicare nor Medicaid recipients may be charged fees to complete patient paperwork.

AMA suggests that a physician may charge a patient for a missed appointment or for one not canceled 24 hours prior to the appointment, if the patient is fully advised of such charges in advance. AMA E-8.01

Starting a Practice

What information is available on starting a practice?

AMA has developed resources to help physicians start a practice or transition into a practice setting. Click here for AMA's resources.

Practices

What information is available on closing a practice or retiring?

MAG has developed a retirement guide for physicians which can be found here.

Can I treat my relatives?

The Georgia Composite Medical Board has not issued a rule on the subject, but it has stated that it does not believe physicians should treat immediate family members.

AMA has stated that physicians generally should not treat themselves or members of their immediate families. AMA notes that there are exceptions for routine care for short-term, minor problems. Except in emergencies, AMA says it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members. AMA E-8.19

Medicare bars payment for items and services rendered by physicians to immediate relatives of the physician, to the physician’s partner in a partnership, or to members of their household. “Immediate relatives” is defined to include husband and wife; natural or adoptive parent, child and sibling; stepparent, stepchild, stepbrother, and stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, and sister-in-law; grandparent and grandchild; and spouse of grandparent and grandchild. Medicare Benefit Policy Manual, Chapter 16, Section 130

Physicians should consult their contracts with commercial payers to find out if they are subject to rules about treating relatives. Medical malpractice insurance companies may have legal or risk management concerns about this practice. Contact them for advice.

Do physicians need to wear name tags in their office?

Yes, all health professionals must wear name tags in a health care setting with a few exceptions. Please click here for more information.

Is it legal for a physician to own a pharmacy and refer to it?

Yes, a physician may refer patients to a self-owned pharmacy if the pharmacy is in the same building as the physician's practice. However, if the pharmacy is separate from the practice,a physician may not refer patients to a self-owned pharmacy. A physician cannot self-refer for Medicare and Medical patients under Stark law.

A physician can have ownership in a pharmacy as long as they do not refer patients there under AMA guidelines.  AMA E-8.0321 and AMA E-8.06

Retirement/Closing a practice 

What notice do I need to give patients when I am closing my practice? 

When ending a physician-patient relationship, a physician must take appropriate steps to avoid a claim of "patient abandonment.” Abandonment is defined as the termination of a professional relationship between physician and patient at an unreasonable time and without giving the patient the chance to find an equally qualified replacement.  

Patient Relationship

How do you end a physician-patient relationship?

Before a physician can abandon or withdraw from a case without liability, they must give reasonable notice or provide a competent physician in his place.
Norton v. Hamilton, 89 S.E.2d 809 (Ga.Ct.App. 1955)

Appropriate steps to terminate the patient-physician relationship include...

  • “Providing written notice to the patient — preferably by certified mail — with a return receipt request"
  • "Providing the patient with a brief explanation for terminating the relationship"
  • "Providing treatment/access to services for a reasonable period of time after termination of relationship, to allow patient to secure care from another person"
  • "Providing resources and/or recommendations to help patient locate another physician of like specialty"
  • "Offering to transfer records to a newly-designated physician upon signed patient authorization.” AMA's E-8.115

Click here for the Georgia Composite Medical Board’s FAQ.

Patient Consent

Can minors consent to their own health care decisions?

"Under Georgia statute, the age of legal majority is 18 years; until that age all persons are minors." § 39-1-1(a) 

In general, parental consent is needed before a physician may treat a minor. However, there are some exceptions to this rule which have been recognized by statute, including…

  • A pregnant minor, regardless of marital status, may consent to medical treatment relating to her pregnancy without the consent of her parents § 31-9-2
  • A minor can consent to medical treatment for his or her minor child § 31-9-2(a)(3)
  • Emergency situations § 31-9-3

Facilities that receive Title X Federal Family Planning Funds (e.g., Planned Parenthood) are allowed to treat minors age 14 and older pursuant to federal law. Private physician offices do not receive such funds and are not subject to such law.

AMA has several ethical policies on this issue, including AMA E-5.055

Must a physician seek patient consent in writing?

Yes, a patient's consent should be obtained in writing. There are two types of consent including basic consent and informed consent. Basic consent avoids a charge of battery (e.g. unwanted touching), which could potentially occur in a case of unwanted emergency treatment. If informed consent is required under Georgia statute, then consent should be obtained in writing in accordance with the requirements of the statute. If informed consent is obtained orally, no presumption will exist as to the validity of the consent. § 31-9-6.1(b)

Does a minor need parental consent to get a birth control prescription?

No. Under Georgia law, any female - regardless of age - can consent to birth control. §31-9-2(5)

Special Needs Patients

Is a physician obligated to provide a foreign language interpreter for patients who cannot speak English?

Probably yes under federal law…

  • The Americans with Disabilities Act provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C 12182(a)
  • Health care providers who receive federal assistance from public insurance companies are required to provide a foreign language interpreter for patients with limited English proficiency under the Civil Rights Act. The provider is required to incur the cost associated with providing the interpreter and cannot charge the patient or the patient’s insurance company. 42 U.S. Code, sec. 2000d

There is no Georgia law requiring a physician to provide foreign language interpreters for non-English speaking patients, but there are several laws regarding related issues…

  • A woman must be provided with information about the risk of carrying an unborn child to term in a language understood by the patient through a translator when she is considering an abortion. § 31-9A-3(1)(C)
  • The Georgia Department of Human Resources is required by law to provide information to help a woman through a pregnancy and information about the different stages of fetal development. § 31-9A-4
  • The physician profile published by the Georgia Composite State Board of Medical Examiners must include the identification of any translating services available at the primary practice setting if requested by the physician. § 43-34A-3(c)(9)
  • For children with severe emotional issues, the coordinated system of care shall be culturally and ethnically sensitive. § 49-5-222

According to HHS, health care organizations must offer and provide language assistance services, including bilingual staff and interpreter services, at no cost to each patient/consumer with limited English proficiency at all points of contact, in a timely manner during all hours of operation. Federal Register 65, no. 247

Go to AMA H-160.924 for the AMA's policy.

What is a physician required to provide for hearing-impaired patients?

The Americans with Disabilities Act requires that physicians provide appropriate auxiliary aids and services to individuals who are deaf or hard of hearing where such aids and services are necessary to ensure effective communication with the patient and such aids/services do not do not impose an undue burden or fundamentally alter the physician's services. Physicians need to ultimately remember that failure to provide a reasonable aid, either literally or in the patient’s eyes, could result in a discrimination lawsuit. 42 U.S.C 12182(a) (See foreign language interpreter for additional details on this law.)

Go to MAG 155.997 for MAG's policy.

Go to AMA D-160.992, AMA D-90.999, and AMA H-215.982 for AMA's policies.

Prescriptions
 
Is it illegal in Georgia for patients to “doctor shop?”

Yes, it is illegal in Georgia to obtain a prescription from one physician after obtaining a similar prescription from another physician without disclosing this fact. Georgia law states that a patient must inform a practitioner that they have obtained a similar controlled substance from another practitioner. Breaking this law constitutes a felony punishable by up to eight years in prison and/or a fine of up to $50,000. § 16-13-43

Who can prescribe controlled substances in Georgia?

Click here for chart.

Scope of Practice

Can audiologists independently perform intraoperative monitoring (IOM) without supervision?

No, Georgia does not allow audiologists to perform IOM without supervision. Audiologists performing this function are typically supervised by a neurophysiologist (neurologist trained in IOM). In addition to the “active” monitoring of nerve function during surgery (the technical component) there is a “professional component” that involves interpreting the data. § 43-44-3

At the federal level, the Centers for Medicare and Medicaid Services (CMS) requires that audiologists/technicians be supervised by a neurologist and specifically prohibits the operating surgeon or anesthesiologist from providing that oversight.

When are pharmacists allowed to vaccinate patients in Georgia?

Pharmacists are allowed to administer all vaccinations with a valid prescription from a physician. Pharmacists are also able to enter into an Influenza Vaccine Protocol with a physician that allows them to administer the vaccination to a group of patients without prescriptions. § 43-34-26.1

What is the difference between collaboration and delegation between a physician and a pharmacist?

There are two types of relationships that can exist between physicians and pharmacists in Georgia. A collaborative agreement allows hospital pharmacists to work with medical staff members in managing drug therapies for patients in institutional settings. “Collaborate” means to work jointly with others as approved by an order from an institutional physician or pursuant to a protocol established in accordance with medical staff policy. Collaborative agreements can only exist in institutional settings such as hospitals and are broader than delegations. § 26-4-212: Safe Medications Practice Act.

Outside of an institutional setting, physicians can delegate authority to qualified pharmacists to modify drug therapy. These narrower agreements can take place between any physician and any qualified pharmacist. “Drug Therapy Modification” is defined as the adjustment of dosages, dosage schedules, and/or medications by a pharmacist under authority delegated and supervised by a physician. Such medications need not be pharmaceutically or therapeutically equivalent to the initial prescription issued to the patient by the prescribing physician. Here, a physician may delegate authority to a qualified pharmacist to modify drug therapy through a protocol for a patient under the physician's direct medical care and supervision. § 43-34-24.

Can a physician delegate duties to a physician assistant?

Yes, a physician assistant (PA) is permitted to prescribe schedule III, IV, or V drugs (and II in emergency situations with a physician's signature) or devices as authorized in the PA’s job description which must be filed with the Georgia Composite Medical Board. A PA is only permitted to perform the delegated duties in the principal offices and/or hospitals of the delegating physician(s). Rules 360-5-.07.

All PAs must clearly identify themselves in order to ensure that they are not mistaken by the public as a physician. They must wear a clearly legible name tag at all times with the words “Physician's Assistant” on the tag. They are to be addressed as Mr., Mrs., Ms., or Miss. The PA or office staff must notify the patient that the patient has the right to see the physician prior to any prescription drug or device order being issued by the physician assistant. Rules 360-5-.07.

If a patient receives medical services from a PA more than two times in a 12-month period, the primary or alternate supervising physician shall see such patient on no less than one following visit by the patient during the same 12-month period. § 43-34-109.

Is a physician liable for the medical acts of the physician assistant to whom they have delegated authority?

Yes, the law states that “the delegating physician shall remain responsible for the medical acts of the physician assistant performing such delegated acts and shall adequately supervise the physician assistant.” § 43-34-103.

Insurance

Is there a time limit on retroactive requests for payment recoveries by insurance companies?

Yes, an insurer's post-payment claim audit or retroactive claim denial must be completed within 18 months of that date of service or discharge if a provider submits a claim for payment within 90 days of the last date of service or discharge included on the claim.

If the claim was submitted for payment more than 90 days after the date of service or discharge, an insurer's post-payment claim audit or retroactive claim denial must be completed within 18 months of the claim submission date or 24 months after the date of service, whichever is sooner. § 33-20A-62