Hospital Text Messaging Rules Placed on Hold by Joint Commission


The Joint Commission, which accredits hospitals and other health care organizations, hit pause on its prior May 2016 announcement to allow secure text messaging in hospitals and other health care organizations. The use of text messaging in Joint Commission accredited organizations is delayed until September 2016. In the interim, The Joint Commission will collaborate with the Centers for Medicare & Medicaid Services to develop guidelines for text-message-based orders to ensure consistency with Medicare’s Conditions of Participation. We expect the new guidance to include a series of FAQs to guide health care organizations when incorporating text-message-based orders into their policies and procedures.

The Joint Commission first announced its ban on text messaging in a 2011 statement on its FAQ page. At the time, the Joint Commission prohibited physicians from sending orders through text messages because it believed the available technology could not adequately ensure the safety and security of the text messages. It opined, “[I]t is not acceptable for physicians or licensed independent practitioners to text orders for patients to the hospital or other health care setting. This method provides no ability to verify the identity of the person sending the text and there is no way to keep the original message as validation of what is entered into the medical record.” However, five years is a lifetime in health care technology and communications advancement. Apps and their capabilities (including security features) have evolved, and providers are increasingly interested in using text messages to communicate with patients, hospitals, and other practitioners.

In May 2016, the Joint Commission reversed its prior ban, stating that providers “may text orders as long as a secure text messaging platform is used and the required components of an order are included.” The Joint Commission cited recent research and a better understanding of the capabilities of text messaging platforms as the basis for its decision to reverse course. The telehealth community and tech-friendly providers applauded the decision, as it opened many doors for more responsive care and efficient transmission of orders.

The use of text messages in the health care setting presents a host of HIPAA compliance issues, as well as state law compliance issues. But text messaging is, by no means, impossible to implement. Providers should develop a thoughtful policy and procedure for health care messaging, with a primary focus on security. For example, providers should consider a secure messaging platform that includes the following:

  • Secure sign-on process;
  • Encrypted messaging;
  • Delivery and read receipts;
  • Date and time stamp;
  • Customized message retention time frames;
  • Specified contact list for individuals authorized to receive and record orders.

The forthcoming guidance will likely recommend organizations use a secure text messaging platform that includes a number of these safeguards. Once the new policy guidelines are issued, organizations that permit physicians to text message orders will need to ensure the text-message-based orders comply with existing Joint Commission standards for physician orders. In addition, organizations will need to be cognizant of the state law restrictions on physician orders and medication orders when drafting text messaging policies and procedures. Those that successfully implement the process will undoubtedly enjoy the rapid responsiveness and enhanced convenience and communication text messaging offers.

We will continue to monitor The Joint Commission updates for the forthcoming guidance.

For more information on telemedicine, telehealth, and virtual care innovations, including the team, publications, and other materials, visit Foley’s Telemedicine Practice.

Report Warns Providers of HIPAA Violations When Responding to Negative Online Reviews


ProPublica, a public interest investigative newsroom, recently identified more than 3,500 one-star medical reviews on Yelp in which patients complained about privacy issues. ProPublica determined that “in dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.” For example, ProPublica noted consumers giving providers negative reviews on Yelp and providers responding with details about the “patients’ diagnoses, treatments and idiosyncrasies.” Continue reading this entry

Rhode Island’s New Law Requires Health Plans Cover Telemedicine Services


Rhode Island marks the 31st state to enact a telemedicine commercial reimbursement statute. The Telemedicine Coverage Act (HB 7160B) was signed into law by Rhode Island Governor Gina Raimondo on June 28, 2016, representing a forward step for telehealth providers in a state that historically has held one of the lowest-rankings in the nation for telehealth coverage policy. The new law requires commercial health insurers in the Ocean State to cover treatment provided via telemedicine to the same extent the services are covered via in-person care. The law takes effect January 1, 2018 and applies to all policies delivered, issued, or reissued in the State after that date. Continue reading this entry

FTC Battles Hospital Mergers: What to Watch for in this Summer’s High-Profile Appeals

CMS Releases Medicare Part B Supplier Billing and Payment Data

In a town that is no stranger to landmark hospital merger cases, last month a Chicago federal judge denied the Federal Trade Commission’s (FTC) motion for a preliminary injunction to temporarily block a merger between 13-hospital Advocate Health Care and four-hospital NorthShore University HealthSystem, both located in the city’s northern suburbs. Judge Jorge Alonso’s much-awaited, but ultimately simple, to-the-point decision, finding that the FTC had not carried its burden of defining a relevant geographic market, is currently on appeal to the Seventh Circuit. The case will be heard on August 19, just a few weeks after the summer’s other major hospital merger appeal is heard by the Third Circuit on July 26. That matter, in which Judge John Jones of the Western District of Pennsylvania denied the FTC’s motion to block the merger of 551-bed Penn State Milton S. Hershey Medical Center and three-campus, 646-bed PinnacleHealth, is also viewed as a critical win for the FTC. Continue reading this entry

IRS Denies Exempt Status for Non-MSSP Accountable Care Organizations


In April, the IRS released a private letter ruling denying section 501(c)(3) status to an accountable care organization (“ACO”) that contracted with third-party payers outside of the Medicare Shared Savings Program (“MSSP”). I.R.S. Priv. Ltr. Rul. 2016-15-022 (Jan. 15, 2016). The ACO was formed by a non-profit, tax-exempt health system to coordinate a clinically integrated network of health care providers, including physicians employed by the health care system and independent physicians.

ACOs have become common vehicles in health care since passage of the Affordable Care Act (“ACA”). Although ACOs may take many forms, generally they are legal entities or arrangements among health care systems, doctors, and hospitals to create a contracting agency that can contract collectively with payors, including government programs. The ACO’s contracts with payors are designed to create shared financial incentives among doctors, hospitals, and other providers and make the providers accountable for the care they provide. Commonly, if providers in the ACO meet performance goals based on improving health outcomes and controlling cost, while meeting quality criteria, they can share in benefits realized. Continue reading this entry