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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...

203-772-7782
Dena Castricone, Murtha Cullina Law Firm, Privacy and Cybersecurity Attorney
Partner

Dena M. Castricone is a member of the Long Term Care and Health Care practice groups.  She is the Chair of the Privacy and Cybersecurity practice group and the Chair of the firm’s Pro Bono Committee.  Prior to joining Murtha Cullina, Dena served as a law clerk to the Chief Justice of the Rhode Island Supreme Court, Frank J. Williams.

Dena’s long term care and health care clients compete in a constantly evolving industry, facing both rising administrative and regulatory burdens and shrinking reimbursement rates. She helps skilled nursing centers, physician groups, home health and hospice agencies, community health centers, senior living communities and hospitals thrive in this challenging environment, providing strategic advice informed by a thorough understanding of each client’s individual business objectives.

Dena handles a broad range of regulatory compliance issues for providers, including responses to government inspections, professional licensure actions, Medicare appeals, patient discrimination claims, probate court matters relating to decision making and Fair Housing issues, as well as risk management and day-to-day operational issues.  With an extensive background in HIPAA, she also assists health care providers with HIPAA privacy and security compliance, policy development and implementation, training and service as a privacy officer.

As the Chair of the Privacy and Cybersecurity group and a Certified Information Privacy Professional (CIPP/US), Dena provides the full complement of data breach coaching services to business and health care clients including breach notification to individuals and various government entities.  She also counsels clients on cyber security risks, the creation of information security plans and the development and implementation of policies and procedures. 

A seasoned litigator as well, Dena brings to her work the perspective of a skilled advocate, and a keen understanding of the strategic challenges her clients may face in a litigation and pre-litigation context.

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 ...

203-772-7726