Editor’s note:  Following publication of our blog post, The Joint Commission contacted Health Care Law Today on September 14, 2017 and informed us it will not move forward at this time with its proposed ambulatory telemedicine standards. The Joint Commission said it continues to evaluate options, and additional comments may be sent to Mary Brockway, director, Department of Standards and Survey Methods, The Joint Commission, at mbrockway@jointcommission.org.

The Joint Commission has proposed changes to its accreditation standards to account for direct-to-patient telehealth services. The new standards will apply to Joint Commission-accredited hospitals and ambulatory health care organizations offering direct-to-patient telehealth services. Accredited hospitals and organizations, as well as entrepreneurial telemedicine companies that contract with such hospitals, should be mindful of these proposed rule changes and how they will affect their telehealth services and operations. The changes are not yet final, so interested providers may want to consider contacting the Joint Commission with comments or feedback.

What Are the Proposed Telehealth Accreditation Standards?

The Joint Commission’s proposed telehealth changes involve revisions to two existing Standards and creation of one new Standard.

Provision of Care (PC) Standard PC.01.01.01

The Joint Commission proposes a new Element of Performance #35 to this Standard, which states:

For hospitals providing direct-to-patient telehealth services: The hospital has a process to confirm the location of the patient in order to assign a provider in accordance with licensure requirements and law and regulation.

Rights and Responsibilities of the Individual (RI) Standard RI.01.03.01

The Joint Commission proposes a revised Element of Performance #7 to this Standard, which states:

The informed consent process includes a discussion about the patient’s proposed care, treatment, and services. Note: For hospitals providing direct-to-patient telehealth services: The discussion about the patient’s proposed care, treatment, and services includes the type of modality that will be used (for example, telephone, video, asynchronous communication).

New Standard RI.01.08.01

The Joint Commission proposes a new Standard, containing three Elements of Performance, which states:

For hospitals providing direct-to-patient telehealth services: The hospital informs the patient about his or her direct-to-patient telehealth services.

  1. The hospital informs the patient about the care, treatment, and services that the hospital provides either directly or by contractual arrangement.
  2. Patients receive information about charges for which they will be responsible prior to the provision of care, treatment, and services.
  3. Information provided to the patient prior to the provision of care, treatment, and services includes the following:
    1. Provider name
    2. Provider credentials
    3. Provider hospital’s contact information

What Do the New Standards Mean for Hospitals and Other Telehealth Providers?

The new Standards apply only to those providers accredited by the Joint Commission, in this case hospitals and ambulatory health care organizations (the two types of telehealth providers most commonly accredited by the Joint Commission). Moreover, the Standards only apply to those accredited providers that deliver direct-to-patient telehealth services. While the proposed changes do not define the term “direct-to-patient,” the Joint Commission most likely interprets it as any service offered by the accredited organization where the healthcare professional is directly delivering medical care to a patient. That is why the revised PC.01.01.01 standard centers around ensuring the healthcare professional is appropriately licensed to practice in the state where the patient is located “in accordance with licensure requirements and law and regulation.”

In this regard, the Joint Commission’s use of the term “direct to patient” is likely an effort to differ from, for example, physician to physician consultative telehealth services (also known as curbside consults) which can often be structured to meet the peer to peer consultation exception to physician licensure in most (but not all) states.

How Will the Proposed Telehealth Standards Affect Hospitals and Other Telehealth Providers?

The Joint Commission’s new Element of Performance #35 under PC.01.01.01 requiring appropriate licensure of the treating physician for direct to patient telehealth services is reasonable and consistent with state laws across the United States. However, the same cannot be said for the other proposed changes.

The new Element of Performance #7 under RI.01.03.01 would require the hospital to obtain patient informed consent to telehealth services for all patients, as well as require a discussion with the patient about the “type of modality that will be used” in the service. Telehealth informed consent is an issue of notable debate currently, and is not universally required across all states. Indeed, many states have deliberately elected not to impose a telehealth informed consent requirement. Other states, like Oklahoma, have eliminated their prior informed consent requirement, realizing it can be cumbersome and largely unnecessary, as most patients who choose to obtain a telemedicine service are fully capable of realizing the treating physician is, by definition, not physically in-person in the same room as the patient. Unfortunately, the new Element of Performance #7 would essentially require all Joint Commission-accredited bodies to obtain patient consent to telehealth services, a requirement more restrictive than many state laws.

The new Standard RI.01.08.01 might warrant the most serious consideration of the three proposed changes because it compels providers to take steps not required under many state laws or CMS Conditions of Participation. The Elements of Performance under RI.01.08.01 are not well-defined and therefore may generate potential confusion during surveys. For example, it is unclear if the Joint Commission expects a hospital to fully disclose to a patient the nature of the hospital’s contracted telehealth arrangements. While hospitals and healthcare providers should always provide their patients with information about financial responsibility, the current confusion and inconsistency regarding coverage of telehealth service (particularly among commercial health plans) can make it difficult for a hospital to readily predict a patient’s financial responsibility (to say nothing of assessing in-network vs. out-of-network benefits for telehealth services). Moreover, requiring a hospital to inform a patient about their financial responsibility before delivering telehealth services can directly conflict with federal Emergency Medical Treatment and Active Labor Act (EMTALA) requirements (under which a hospital must treat/stabilize the patient without regard to the patient’s ability to pay). Hospitals are allowed to utilize telehealth in their emergency department services, and it is unclear if the Joint Commission has reconciled these proposed Standards with other applicable federal laws such as EMTALA.

It may be better if Standard RI.01.08.01 were to simply defer to current laws, and instead require the accredited organization to adhere to all applicable state and federal laws regarding these issues. Otherwise, the Standard imposes a burden on hospitals and providers above and beyond what is required under state and federal laws.

The Joint Commission has previously issued telehealth accreditation Standards that are more restrictive than the law of the land. For example, CMS’ regulations on credentialing by proxy allow an acute care hospital and a critical access hospital to use the streamlined credentialing process for telemedicine services. Credentialing by proxy is a time- and cost-saving approach to reduce administrative burdens, particularly on small hospitals who serve as originating sites and purchase telehealth services from distant site organizations. CMS’ regulations do not require the originating and distant site organizations to be accredited by the Joint Commission as a prerequisite to using credentialing by proxy. However, under the Joint Commission’s Standard MS.13.01.01, if the originating site hospital is accredited by the Joint Commission, the only way the originating site hospital can use credentialing by proxy is if the distant site is also a Joint Commission-accredited organization.

We will continue to monitor for any changes to these proposed Joint Commission Standards.

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