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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.

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© 2021 Foley & Lardner LLPNational Law Review, Volume VI, Number 208
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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

813-225-4127
Claire Marblestone, health care lawyer, Foley and Lardner, Law firm
Partner

Claire Marblestone is a Partner and health care lawyer with Foley & Lardner LLP. Her practice focuses on transactional and health care regulatory matters, with an emphasis on HIPAA compliance, the Anti-Kickback Statute, Stark law, provider enrollment, and licensure and certification. She advises a number of clients, including hospitals, health systems and physician groups on regulatory and compliance issues presented by telemedicine and telehealth.

213-972-4822
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