Taylor English Duma LLP Setting it Straight Who in Georgia Can Set-up PAP – And Where They Can Do It Daniel B. Brown, JD Taylor English Duma LLP 678-426-4613 dbrown@taylorenglish.com August 28, 2017 © 2010 American Academy of Sleep Medicine

Housekeeping Disclaimer: This program is educational and does not constitute, and may not be construed as, legal advice to, or creating an attorney-client relationship with, any person or entity. 2

Georgia’s Respiratory Therapy Law "Respiratory care" means the rendering of services to patients with deficiencies or abnormalities which: affect the pulmonary and cardiac systems, and services involve therapy, management, rehabilitation, diagnostic evaluation, education, or care of such patients with regard to such deficiencies or abnormalities. O.C.G.A.§ 43-34-142 3

= Background Abnormality of Pulmonary System Sleep Breathing Disorders Hypopnea is defined as an abnormal respiratory event 4

Background – Sleep Test Reimbursement = Medicare generally requires a credentialed technologist attend the overnight test as a condition of reimbursement. The technologist must be any of: A BRPT registered PSG Technologist; AASM registered Sleep Technologist; Certified Respiratory Therapist - Sleep Disorders Specialist (CRT-SDS) Registered Respiratory Therapist - Sleep Disorders Specialist (CRT-SDS) Registered Electroencephalographic Technologist 5

Background – CPAP Reimbursement = No Medicare Requirement that any particularly credentialed person is needed to set-up PAP as a condition of DME reimbursement. State Law controls who is or is not legally permitted to set-up PAP. 6

Background – California Experience 2008 Pronouncement of CA Respiratory Care Board: “Respiratory diagnostic testing for obstructive sleep apnea and treatment via therapeutic interventions requiring positive airway pressure must be performed by a licensed respiratory care practitioner pursuant to the Respiratory Care Practice Act. To avoid legal penalties and/or discipline, it is imperative that each organization begin making the necessary [personnel] changes, as applicable, immediately” Sleep Labs forced to close or pay $15,000 fine for unlicensed RT 7

Background – California Experience The Board’s Unequivocal Stance: 8

Background – California Experience Co-Existence 2009 – Enactment of PSG License Law “(2) “Polysomnography” means the treatment, management, diagnostic testing, control, education, and care of patients with sleep and wake disorders [and also includes] the therapeutic and diagnostic use of oxygen, the use of positive airway pressure including continuous positive airway pressure (CPAP) and bilevel modalities, adaptive servo-ventilation, and maintenance of nasal and oral airways that do not extend into the trachea.” 9

Georgia’s Response In 2009, the Georgia General Assembly amended the Georgia Medical Practice Act to recognize the practice of polysomnography. See, O.C.G.A. § 43-34-45 (the “PSG Amendment”)     Prevent, deter, stop, make it more inconvenient 10

Georgia’s Response The PSG Amendment makes clear that “a physician may delegate tasks involving polysomnography to a polysomnographic technologist without regard to whether such technologist is certified or licensed as a respiratory care therapist.” O.C.G.A. § 43-34-45(b) Prevent, deter, stop, make it more inconvenient 11

Georgia Law Definitions - Polysomnography In Georgia, “Polysomnography” means, in part, “therapeutic and diagnostic use of low-flow oxygen, the use of positive airway pressure including continuous positive air pressure (CPAP) and bi-level modalities, adaptive servo-ventilation, and maintenance of nasal and oral airways that do not extend into the trachea.” O.C.G.A. § 43-34-45(b) 12

Georgia Law Definitions –PSG Technologist "Polysomnographic technologist" means any person performing polysomnography services under the supervision of a person licensed under this article [ie, Physician] O.C.G.A. § 43-34-45(a)(2). 13

Georgia Law Definitions – Supervision "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. O.C.G.A. § 43-34-45(a)(3). 14

Georgia Law Definitions – Limitations Nothing in the PSG Law section shall be construed to permit a PSG technologist to practice medicine, or * * * “(3) Authorize a polysomnographic technologist to treat, manage, control, educate, or care for patients other than those with sleep or wake disorders or to provide diagnostic testing for patients other than those with suspected sleep or wake disorders.” O.C.G.A. § 43-34-45(c)(3) 15

PSG Law – Operating Points The PSG Law permits polysomnographic technologists to perform polysomnography [PAP] as long as (i) the activity of polysomnography is performed on patients suffering from a sleep or wake disorder, and (ii) the technologist’s activities are supervised by a Georgia licensed physician.  O.C.G.A. § 43-34-45.  Prevent, deter, stop, make it more inconvenient 16

PSG Law – the Takewaway By statute, polysomnographic technologists may use PAP to treat, manage, control, educate and care for patients without being a licensed respiratory therapist as long as the patient suffers from a sleep or wake disorder and a Georgia physician delegates and supervises the activity.  O.C.G.A. § 43-34-45(b), O.C.G.A. § 43-34-151(b)(9). 17

Resp. Care Committee The Respiratory Care Advisory Committee (“Committee”) of The Georgia Composite Medical Board (“Board”) governs interpretation and enforcement of the PSG Act. The Committee has addressed who can set up PAP and where in Georgia on several occasions. 18

Q: Resp. Care Committee – Aug. 2010 A: No. The Committee was asked whether a PSG technologist could instruct patients in the use of their home CPAP machines.  The Board stated that the Committee’s answer was no: “a technologist would have to hold a Respiratory Care license.” Committee Board Minutes, 8-2010 Can a PSG Tech Instruct a Patient on CPAP Use? 19

Georgia Law Definitions - Polysomnography In Georgia, “Polysomnography” means the treatment, management, diagnostic testing, control, education, and care of patients with sleep and wake disorders, and includes the use of PAP. O.C.G.A. § 43-34-45(b) 20

Q: Resp. Care Committee – Jan. 2011 A: Yes. The Committee states that a PSG technologist who has completed an accreditation program is allowed to set up PAP in a sleep lab. Committee Board Minutes, Jan 2011 Must a PSG technologist complete an accreditation program in order to provide PSG servives? 21

Georgia Law Definitions –PSG Technologist "Polysomnographic technologist" means any person performing polysomnography services under the supervision of a person licensed under this article [ie, Physician] O.C.G.A. § 43-34-45(a)(2). 22

Q: Resp. Care Committee – Jan. 2011 Implied Answer: Sleep Lab Only. Q: The Committee states that a PSG technologist who has completed an accreditation program is allowed to set up PAP in a sleep lab. Committee Board Minutes, Jan. 2011 Can a PSG technologist set up PAP in the home or only the Sleep Lab? 23

Q: Resp. Care Committee – March 2012 The Committee states: Express Answer: No. Sleep Lab Only. Q: The Committee states: “In home” CPAP set ups for sleep apnea patients in Georgia must be performed by a Georgia-licensed Respiratory Care Professional.” Committee Board Minutes, March 2012 Can a PSG technologist set up PAP in the home? 24

Georgia Law Definitions – Limitations Nothing in the PSG Law section shall be construed to permit a PSG technologist to practice medicine, or * * * “(3) Authorize a polysomnographic technologist to treat, manage, control, educate, or care for patients other than those with sleep or wake disorders or to provide diagnostic testing for patients other than those with suspected sleep or wake disorders.” O.C.G.A. § 43-34-45(c)(3) 25

Express Answer this time: YES! Resp. Care Committee – March 2014 Express Answer this time: YES! reprise Q: The Committee states: “Yes you [a PSG Tech] can set-up the equipment [in the patient’s home], but you may not read, interpret it or anything else.” Committee Board Minutes, March 2014 Can a PSG technologist set up PAP in the home? 26

Q: Resp. Care Committee – Aug 2014 A: NO! Assume that a DME Supplier ships a PAP to a patient for calibration AFTER shipment (ie, not A-PAP). The Committee responded that in order to calibrate PAP after it is shipped to the home, “You must be a GA licensed Respiratory Care Professional.” Committee Board Minutes, Aug. 2014 Can a PSG technologist set up PAP in the home following PAP shipment to the home? 27

Committee Response The last reference to CPAP found in the Board Minutes is a reference in the September 3, 2015, Board Minutes to the tabling of an inquiry regarding unlicensed individuals and CPAP devices. 28

Committee Response The take-away here appears to be that PSG Technologists may set up CPAP equipment in the patient’s home but the PSG Technologist may not read, interpret it or anything else with the PAP. 29

End Game The Committee’s position appears to conflict directly with the provisions of the law. PSG Techs have full authority to provide the full range of PAP services anywhere on a sleep-disordered patient as long there is physician supervision. 30

End Game GAMES might ay consider posing written questions to the Committee and offer to present facts about PSG Tech’s training and capabilities and then ask the Committee to provide clear responses consistent with the PSG Law. 31

Contact Daniel B. Brown, Esq. taylor | english 1600 Parkwood Circle Suite 400 Atlanta, GA 30339 Phone: (678) 426-4613 dbrown@taylorenglish.com taylor | english   Presentation Power Point is copyrighted © 2017 Daniel B. Brown