Amedee: “That’s an Order! CMS’s Continuing Ban on Texting of Patient Orders” Published by LHA

January 31, 2018

Click here to read article in LHA Impact Lawbrief

Taylor Porter Partner and healthcare attorney Cindy Amedee authored, "That's an Order! CMS's Continuing Ban on Texting of Patient Orders," published in the Louisiana Hospital Association's Impact Lawbrief January 2018 Newsletter. The article discusses a recent Memorandum by the Center for Medicare and Medicaid Services (CMS) to State Survey Agency Directors regarding texting of patient information and patient orders among healthcare providers.

Amedee represents health care clients in a wide variety of health care matters, advising clients on health care transactions, mergers and acquisitions, federal and state health care compliance and regulation, HIPAA, hospital system vendor relationships and purchasing transactions. She also represents clients on health information technology issues. Amedee has been ranked by her peers for two consecutive years among the 2017 and 2018 Louisiana Rising Stars in Health Care Law. ​She was recently named to the Advisory Commission for the Health Law Specialty, the newest legal specialty approved by the Louisiana Supreme Court and Louisiana Board of Legal Specialization.

​Below is the full text of the article: 

That’s an Order! CMS’s Continuing Ban on Texting of Patient Orders
By:
Cindy Amedee

On Dec. 28, 2017, the Center for Medicare and Medicaid Services (CMS) issued a Memorandum to State Survey Agency Directors regarding texting of patient information and patient orders among healthcare providers. In a nutshell, CMS clarified that:

  1. Texting of patient information among a healthcare team is permissible if a secure platform is used;
  2. Texting of patient orders is prohibited even if the platform is secure; and
  3. Computerized Provider Order Entry (CPOE) is the preferred method of order entry.


The December 2017 Memorandum piggybacks onto a December 2016 Clarification issued by The Joint Commission in collaboration with CMS regarding physician texting of patient information and patient orders. In the December 2016 Clarification, the agencies expressly prohibited the texting of patient orders. After speaking with various stakeholders, the agencies concluded that the impact on patient safety was unclear. There was concern that patient orders by text increased the burden on nurses to transcribe orders into the electronic health record. While the agencies acknowledged that verbal orders are permitted, they stated that having a real-time conversation allows for clarification and confirmation of the order. Additionally, the Clarification stated that if a Clinical Decision Support recommendation or alert is triggered during the order process, the person manually entering the order must take the extra step of contacting the physician. That extra step could delay treatment.

In the December 2017 Memorandum, CMS maintains its position. The texting of patient orders is prohibited; however, CMS now cites regulatory reasons for the prohibition.

Specifically, CMS cites the Conditions of Participation (CoPs) and Conditions for Coverage (CfCs) as its reason for banning the texting of patient orders. It states that texting orders is not in compliance with the COPs or CfCs, quoting as applicable the standards regarding form, retention and content of records. The form and retention standard provides that hospitals must maintain medical records that are accurately written, promptly completed, properly filed and retained, and accessible. It states that hospitals must use a system of author identification and maintenance that ensures the integrity of authentication and protects the security of all record entries, as well as ensuring confidentiality of the record. The retention policy requires maintenance of records in their original or legally producible form for five years.

Compliance with the standard regarding content of the patient record also prohibits texting of patient orders. The contents standard provides for the documentation of practitioners’ orders, nursing notes, reports of treatment, medical records, radiology and lab results, vital signs and other information necessary to monitor a patient’s condition.

In keeping with the December 2016 Clarification, CMS maintains that CPOE is the preferred method of order entry. It reasons that using CPOE means the order would be dated, time, authenticated and promptly placed in the medical record. That does not occur with patient orders communicated by text.

CMS is not oblivious to the importance of healthcare teams’ communications by text. It recognizes that these communications are “essential” and “valuable.” CMS remains unswayed, however, when it comes to the texting of patient orders. The Memorandum concludes by stating that providers and organizations are expected to implement procedures and processes that routinely assess the security and integrity of its texting systems and platforms to avoid a compromise in patient care.

Comments from the healthcare industry range from positive to negative. Some believe that texting of patient orders should be prohibited because there is too much room for error because of auto-correct or informal text language that could be misconstrued. On the other hand, some practitioners laud the ability to respond quickly to a text from the healthcare team. While there are many perspectives among the healthcare community, CMS is staying the course on the prohibition against texting patient orders.

The December 2017 Memorandum is effective immediately. It instructs the State Survey Directors to communicate the policy to all survey and certification staff, their managers, and the State/Regional Office training coordinators within 30 days from the date of the Memorandum, which is Jan. 27, 2018.

At your next audit, state surveyors will likely be on the lookout for policies and procedures addressing these issues and behaviors. If a provider or organization has not yet developed policies and procedures addressing the texting of patient information and patient orders, now is the time to put them in place. If physicians or other licensed healthcare practitioners are texting orders, now is the time to stop. According to CMS, that’s an order.

Cindy Amedee is a partner in the Baton Rouge offices of Taylor Porter and can be reached at
cindy.amedee@taylorporter.com or by telephone at 225-381-0279.

DISCLAIMER: Any views or opinions presented in this newsletter are solely those of the author and do not necessarily represent those of the Louisiana Hospital Association. The Louisiana Hospital Association accepts no liability for the content of this newsletter or for the consequences of any actions taken based on the information. Hospitals and physicians seeking specific legal advice should consult a qualified attorney.

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