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January 3, 2018 - Health Care Group News: CMS Clarifies that Texting of Orders is Not Permitted

On December 28, 2017, the Centers for Medicare and Medicaid Services (CMS) issued a Survey and Certification Memorandum (S&C Memo) to clarify CMS’ position that it prohibits physicians and health care providers from texting orders. CMS states that texting orders is out of compliance with the Medicare Conditions of Participation (CoPs) and the Conditions for Coverage (CfCs), specifically as such conditions relate to the requirements of a medical record. While the subject line of the S&C Memo relates to all health care providers, CMS appears to rely only on the hospital CoPs to enforce this prohibition on texting orders. However, it is likely that CMS will extend this guidance to other provider types. Additionally, this S&C Memo is in line with the Joint Commission’s recommendations from December of 2016, developed in collaboration with CMS. These recommendations state that providers should not text orders but instead should continue to utilize computerized provider order entry, also known as CPOE, for all physician and other health care practitioner orders.

While CMS does not permit texting orders, it does recognize the essential and valuable use of other forms of texting between health care providers in the S&C Memo. With respect to these other forms of texting, CMS emphasizes that in order to be compliant with the CoPs and CfCs, providers must utilize and maintain secured text messaging platforms that encrypt data and minimize the risks to patients’ privacy of their protected health information under HIPAA. This means that providers currently using secured text messaging platforms should continue to monitor and assess the platforms’ accessibility, security and integrity.

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About this Author

Stephanie Sprague Sobkowiak, Murtha Cullina, physician group attorney, health care industry legal counsel, hospital regulation compliance lawyer
Partner

As the co-chair of the firm's Health Care practice group, Ms. Sobkowiak represents health systems, hospitals, physicians, physician groups and other clients in the health care industry.  Her practice includes assisting those clients with a wide range of compliance, regulatory, managed care, risk management and reimbursement issues, including fraud and abuse, payor contracts, medical staff and credentialing matters, Certificates of Need and HIPAA and related security breaches. 

Ms. Sobkowiak has experience assisting health care clients with a wide variety of contracts, from physician...

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Dena Castricone, Murtha Cullina Law Firm, Long Term Care Attorney
Counsel

Dena Castricone is member of the Long Term Care/Health Care Practice Group and is also an experienced litigator who has been with Murtha Cullina LLP since 2003. As part of the Long Term Care/Health Care Practice Group, she assists nursing homes, assisted living communities, CCRCs, hospitals, physician groups and home health care and hospice agencies with a wide range of regulatory, compliance, litigation and risk management issues. As a litigator, Dena has extensive experience in a wide range of routine and complex business litigation.

203-772-7767
Daniel Kagan, Murtha Cullina, health care attorney, regulatory compliance lawyer, reimbursement issue legal counsel
Associate

Mr. Kagan is an associate in the Health Care Group of Murtha Cullina.  He represents hospitals, physicians and other health care clients with a wide range of regulatory, compliance, risk management and reimbursement issues.

Prior to joining Murtha Cullina, Mr. Kagan clerked for the Honorable Lubbie Harper, Jr. and the Honorable Joseph H. Pellegrino of the Connecticut Appellate Court. 

Mr. Kagan received his J.D. with honors from the University of Connecticut Law School where he was a Notes and Comments Editor ...

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