Category: Telehealth

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Florida’s New Medical Marijuana Law and Telemedicine Exams

Following a special session, the Florida Legislature on June 9, 2017 passed two important bills regarding medical marijuana in the Sunshine State: SB 8A and SB 6A. Together, these bills implement Article X, section 29 of the Florida Constitution, which was added after voters approved Amendment 2, expanding the medical use of marijuana for qualifying patients.  Florida Governor Rick Scott is expected to sign both bills into law.  The new laws would become effective immediately upon signature.

Among the more than 80 pages of legislation, there is one small sentence with big implications for telemedicine and virtual care providers.  Under the new law, the physician issuing a medical marijuana certification must be physically present in the same room as the patient when conducting the certification examination – meaning physicians may not issue a certification for medical marijuana via a telemedicine exam.  For the foreseeable future, Florida residents seeking medical marijuana prescriptions will be limited to in-person examinations.

The statutory language is as follows:

(4) PHYSICIAN CERTIFICATION.—

(a) A qualified physician may issue a physician certification only if the qualified physician:

1. Conducted a physical examination while physically present in the same room as the patient and a full assessment of the medical history of the patient.

Since last year, the Florida Board of Medicine has been considering prohibiting physicians from ordering medical marijuana via telemedicine.  In December 2016, the Board issued a proposed amendment to its telemedicine regulations to clarify that physicians may not order medical cannabis or low-THC cannabis via telemedicine.  The Board subsequently held public hearings on the issue, with a third hearing scheduled for August 4, 2017.  It is unclear how the Board will proceed on its proposed regulation, as the new statute also charges the Department of Health, the Board of Medicine, and the Board of Osteopathic Medicine to adopt rules underneath the law.

Some states, like California, do not prohibit telemedicine-based examinations for medical marijuana, while others, like Colorado, require an in-person examination prior to recommending medical marijuana.  Even in states that allow telemedicine-based examinations for medical marijuana, providers should keep in mind that the examination for the condition for which medical marijuana is being recommended must be an appropriate prior examination and meet the standard of care.

It is also important to note federal law still criminalizes the possession, use, and sale of marijuana.  The new Florida law does not immunize violations of such federal law or any non-medical use, possession, or production of marijuana.  We will continue to monitor changes to Florida regulations on this issue.

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

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“Lone Star” Joins the Rest of Nation as Texas Passes New Telemedicine Law

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On May 12, 2017, the Texas State Legislature passed SB 1107, a law expanding the use of telemedicine in the Lone Star State. The bill is now on its way to Governor Abbot’s desk where he is expected to sign it into law.  Specifically, SB 1107 changes prior Texas law and now allows physicians in Texas to use telemedicine to establish a valid physician-patient relationship without the need for an in-person exam.

The change is the product of months of negotiations between various medical boards, regulatory agencies, and industry groups and may finally bring an end to the longtime telemedicine standoff in the Lone Star State.

Highlights of the new law include the following:

Definition of Telemedicine

“Telemedicine medical services” is defined as health care services delivered by a Texas-licensed physician, or a health professional acting under the delegation and supervision of a Texas-licensed physician, and  acting within the scope of the physician’s or health professional’s license, to a patient at a different physical location than the physician or health professional using telecommunications or information technology.  The law also defines “telehealth service” as a health service, other than a telemedicine medical service, delivered by a health professional licensed, certified, or otherwise entitled to practice in Texas and acting within the scope of the health professional’s license, certification, or entitlement, to a patient at a different physical location than the health professional using telecommunications or information technology.

Doctor-Patient Relationship

A physician may establish a valid doctor-patient relationship solely via telemedicine without the need for an in-person exam.  Under the new law, a physician may provide services to, and establish a physician-patient relationship with, a Texas patient through the following telemedicine modalities:

  • Synchronous audiovisual interaction between the practitioner and the patient in another location;
  • Asynchronous store and forward technology, including asynchronous store and forward technology in conjunction with synchronous audio interaction between the practitioner and the patient in another location, as long as the practitioner uses clinical information from: a) clinically relevant photographic or video images, including diagnostic images; or b) the patient’s relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories; or
  • Another form of audiovisual telecommunication technology that allows the practitioner to comply with the standard of care described in the law.

Standard of Care

The standard of care for a physician delivering care via telemedicine is the same standard of care as when delivering in-person services.  The rule prohibits any other agency with regulatory authority over a health professional from adopting rules imposing a higher (i.e., more restrictive) standard of care for telemedicine services.

Remote Prescribing

Note, rules on prescribing via telemedicine remain to be addressed in full.  This is because the law requires the Texas Medical Board, Board of Nursing, Physician Assistant Board, and Board of Pharmacy, to jointly adopt rules and publish FAQ responses relating to defining valid prescriptions for telemedicine exams.  Any such rule, however, must allow for telemedicine-based doctor-patient relationships.  The law expressly prohibits the use of telemedicine to prescribe an abortifacient or any other drug or device that terminates a pregnancy.

Commercial Insurance Coverage

Texas is among the majority of states to have enacted a telehealth commercial insurance coverage law.  Texas’ coverage law prohibits a health plan from excluding a telemedicine service from coverage solely because the service is not provided through a face-to-face consultation.  The new statute narrows the Texas coverage parity law by excluding coverage for a telemedicine or a telehealth service provided by only synchronous or asynchronous audio interaction or facsimile.

Display Payment Practices

Every health plan must adopt and display its policies and payment practices for telemedicine services in a conspicuous manner on its website.  This is designed to promote clarity in telehealth insurance coverage.

Follow-up Care

A physician providing telemedicine services to a patient must provide the patient with guidance on appropriate follow-up care.

Medical Records

Within 72 hours of the telemedicine encounter, if the patient consents and has a primary care physician, the telemedicine practitioner must provide the patient’s primary care physician with a medical record or other report containing an explanation of the treatment and the evaluation, analysis or diagnosis of the patient’s condition.

Mental Health

The statute clarifies that the provisions of the new law do not apply to mental health services.

Passage of this new legislation is welcome news for telemedicine companies and health care providers looking to offer telemedicine services in Texas.  We will continue to monitor Texas for any rule changes that affect or improve telemedicine opportunities in the state.

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

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Prescribing Controlled Substances Without an In-Person Exam: The Practice of Telemedicine Under the Ryan Haight Act

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Editor’s Note: This article is the second in a series addressing telemedicine prescribing and controlled substances, designed to give some much needed practical guidance and orientation to established healthcare providers, hospitals, and entrepreneurs alike. The first article addressed federal rules for prescribing controlled substances under the Ryan Haight Act.  Subsequent articles will discuss the prescribing controlled substances via telemedicine under state laws.

As providers are becoming more comfortable with delivering care via telemedicine technologies, many of them are looking to explore services other than low acuity triage consults.  One area of patient service opportunity – and particular confusion – is prescribing controlled substances via telemedicine.

As discussed in greater detail in the first article in this series, the Ryan Haight Online Pharmacy Consumer Protection Act was designed to combat the rogue internet pharmacies that proliferated in the late 1990s, selling controlled substances online.  Although the Act was intended to target “rogue” internet pharmacies, legitimate healthcare providers who prescribe controlled substances via telemedicine must carefully review the regulations to ensure compliance.  Among other things, the Act requires a practitioner to have conducted at least one in-person medical evaluation of the patient prior to issuing a prescription for a controlled substance.

However, the Ryan Haight Act contains an important exception to the in-person exam requirement for practitioners engaged in the “practice of telemedicine.”  Indeed, there are seven separate “practice of telemedicine” exceptions under the Act.  They are technical, and providers should not assume their approach to telemedicine or telehealth does, in fact, meet an exception under the Ryan Haight Act.  Providers must devote the resources to really understanding these laws and how to apply them to their business or services.

Practice of Telemedicine Under the Ryan Haight Act

The Act contains the following “practice of telemedicine” exceptions:

(1) Treatment in a hospital or clinic. The practice of telemedicine is being conducted while the patient is being treated by, and physically located in, a hospital or clinic registered under section 303(f) of the Act (21 U.S.C. 823(f)) by a practitioner acting in the usual course of professional practice, who is acting in accordance with applicable State law, and who is registered under section 303(f) of the Act (21 U.S.C. 823(f)) in the State in which the patient is located, unless the practitioner:

(i) Is exempted from such registration in all States under section 302(d) of the Act (21 U.S.C. 822(d); or

(ii) Is an employee or contractor of the Department of Veterans Affairs who is acting in the scope of such employment or contract, and registered under section 303(f) of the Act (21 U.S.C. 823(f)) in any State or is utilizing the registration of a hospital or clinic operated by the Department of Veterans Affairs registered under section 303(f);

(2) Treatment in the physical presence of a practitioner. The practice of telemedicine is being conducted while the patient is being treated by, and in the physical presence of, a practitioner acting in the usual course of professional practice, who is acting in accordance with applicable State law, and who is registered under section 303(f) of the Act (21 U.S.C. 823(f)) in the State in which the patient is located, unless the practitioner:

(i) Is exempted from such registration in all States under section 302(d) of the Act (21 U.S.C. 822(d)); or

(ii) Is an employee or contractor of the Department of Veterans Affairs who is acting in the scope of such employment or contract, and registered under section 303(f) of the Act (21 U.S.C. 823(f)) in any State or is using the registration of a hospital or clinic operated by the Department of Veterans Affairs registered under section 303(f);

(3) Indian Health Service or tribal organization. The practice of telemedicine is being conducted by a practitioner who is an employee or contractor of the Indian Health Service, or is working for an Indian tribe or tribal organization under its contract or compact with the Indian Health Service under the Indian Self-Determination and Education Assistance Act; who is acting within the scope of the employment, contract, or compact; and who is designated as an Internet Eligible Controlled Substances Provider by the Secretary of Health and Human Services under section 311(g)(2) of the Act (21 U.S.C. 831(g)(2));

(4) Public health emergency declared by the Secretary of Health and Human Services. The practice of telemedicine is being conducted during a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247d), and involves patients located in such areas, and such controlled substances, as the Secretary of Health and Human Services, with the concurrence of the Administrator, designates, provided that such designation shall not be subject to the procedures prescribed by the Administrative Procedure Act (5 U.S.C. 551–559 and 701–706);

(5) Special registration. The practice of telemedicine is being conducted by a practitioner who has obtained from the Administrator a special registration under section 311(h) of the Act (21 U.S.C. 831(h));

(6) Department of Veterans Affairs medical emergency. The practice of telemedicine is being conducted:

(i) In a medical emergency situation:

(A) That prevents the patient from being in the physical presence of a practitioner registered under section 303(f) of the Act (21 U.S.C. 823(f)) who is an employee or contractor of the Veterans Health Administration acting in the usual course of business and employment and within the scope of the official duties or contract of that employee or contractor;

(B) That prevents the patient from being physically present at a hospital or clinic operated by the Department of Veterans Affairs registered under section 303(f) of the Act (21 U.S.C. 823(f));

(C) During which the primary care practitioner of the patient or a practitioner otherwise practicing telemedicine within the meaning of this paragraph is unable to provide care or consultation; and

(D) That requires immediate intervention by a health care practitioner using controlled substances to prevent what the practitioner reasonably believes in good faith will be imminent and serious clinical consequences, such as further injury or death; and

(ii) By a practitioner that:

(A) Is an employee or contractor of the Veterans Health Administration acting within the scope of that employment or contract;

(B) Is registered under section 303(f) of the Act (21 U.S.C. 823(f)) in any State or is utilizing the registration of a hospital or clinic operated by the Department of Veterans Affairs registered under section 303(f); and

(C) Issues a controlled substance prescription in this emergency context that is limited to a maximum of a five-day supply which may not be extended or refilled; or

(7) Other circumstances specified by regulation. The practice of telemedicine is being conducted under any other circumstances that the Administrator and the Secretary of Health and Human Services have jointly, by regulation, determined to be consistent with effective controls against diversion and otherwise consistent with the public health and safety.

How Useful Are the Ryan Haight Act Exceptions for Telemedicine?

Some of the exceptions are very narrow and do not account for current clinical telemedicine practices.  However, others are well-suited to institutional telemedicine arrangements.  And others are of use to only a limited subset of practitioners or particular environments (e.g., public health emergency, Indian tribal organization).  One exception requires a patient-site telepresenter who is also registered with the Drug Enforcement Agency (DEA) (and presumably independently able to prescribe controlled substances for the patient).

Overall, the exceptions have limited utility in contemporary telemedicine arrangements, most notably telemedicine services directly to the patient’s home.  For that reason, the exceptions do not easily align with direct-to-patient service models frequently sought by patients in areas such as telepsychiatry (e.g., where the patient is at his or her home at the time of the telemedicine consult).  The main exception designed to accommodate this type of telemedicine practice – the special registration – has not yet been implemented by the DEA.

The DEA seems to recognize the exceptions have not kept pace with the rapid developments in telemedicine-based practices.  To be fair, Congress gave the DEA a very brief window to draft regulations in order to implement the Act within the short time period between the passage of the Act and its effective date (only six months).  The DEA’s interim final rule was effective a mere nine days after it was published, leaving no time for public comment.  Fortunately, DEA has announced plans to activate the special telemedicine registration provision (exception #5).  This would allow practitioners to use telemedicine to prescribe controlled substances without the per se in-person exam.  The new rule is anticipated to be published this year.

If I Meet an Exception, Can I Prescribe Controlled Substances Without Any In-Person Exam?

No, not necessarily.  Whether the exam is conducted in-person or via the practice of telemedicine, a prescription for a controlled substance must always be issued for a legitimate medical purpose by a practitioner acting in the usual course of his or her professional practice.  Moreover, practitioners must comply with both federal and state laws, as DEA considers a physician who engages in the unauthorized practice of medicine under state law to be someone who is not acting in the usual course of his or her professional practice.  For example, according to DEA, a controlled substance prescription issued by a physician who lacks the license or other authority necessary to practice medicine within the state is not a valid prescription under federal law.

Some states prohibit the prescribing of controlled substances via telemedicine, but others do allow it.  The remaining states are silent, or allow/disallow its use in certain specialties (e.g., cannot be used in connection with treatment of chronic nonmalignant pain).  The federal and state laws must be read in harmony with each other (not unlike how HIPAA interacts with more restrictive state medical privacy laws).  Understanding how these layers intersect will enable providers to see the pathways and approaches available to compliant prescribing of controlled substances via telemedicine.  This is particularly useful for those telemedicine providers in specialties that involve chronic disease management with pharmacotherapy, for example, adolescent and adult psychiatry, substance abuse/recovery, endocrinology, hormone replacement therapy, and medical weight loss.

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

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Telemedicine Prescribing and Controlled Substances Laws

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Editor’s Note: This article is the first of a series addressing telemedicine prescribing and controlled substances, designed to give some much needed practical guidance and orientation to established health care providers, hospitals, and entrepreneurs alike.

As providers become more comfortable with delivering care via telemedicine, telehealth, and digital health technologies, some are exploring services beyond low acuity consults.  One area of opportunity – and notable confusion – is prescribing controlled substances via telemedicine.  This particularly affects specialties that couple chronic disease management with pharmacotherapy.  For example, adolescent and adult telepsychiatry, substance abuse/recovery, endocrinology, hormone replacement therapy, and medical weight loss.

Providers are increasingly inquiring about telemedicine prescribing laws and rules, as well as strategies and approaches for business models and service lines that not only satisfy patient needs, but comply with the layers of intersecting state and federal laws on telemedicine, medical practice, fraud and abuse, and controlled substances.  Indeed, telemedicine prescribing of controlled substances was one of the “Telehealth Top 10” for 2015, and has only continued to generate interest since that time.

What is the Federal Ryan Haight Act?

The Ryan Haight Online Pharmacy Consumer Protection Act was designed to combat the rogue internet pharmacies that proliferated in the late 1990s, selling controlled substances online.  The Act took effect April 13, 2009 and the Drug Enforcement Agency (DEA) issued regulations effective that same date.  The Act essentially imposed a federal prohibition on form-only online prescribing for controlled substances.  Although the Act was intended to target “rogue” internet pharmacies, legitimate healthcare providers who prescribe controlled substances via telemedicine must carefully review the regulations to ensure compliance.

What Does the Ryan Haight Act Mean for Healthcare Professionals?

Under the Ryan Haight Act, no controlled substance may be delivered, distributed, or dispensed by means of the internet (which, for all practical purposes, includes telemedicine technologies) without a valid prescription.  A valid prescription is one that is issued for a legitimate medical purpose in the usual course of professional practice by: 1) a practitioner who has conducted at least one in-person medical evaluation of the patient; or 2) a covering practitioner.  An “in-person medical evaluation” means a medical evaluation that is conducted with the patient in the physical presence of the prescribing practitioner, without regard to whether portions of the evaluation are conducted by other health professionals.

While the DEA has historically viewed the lack of an in-person medical evaluation as a red flag of potential drug diversion, the Ryan Haight Act makes it unambiguous that it is a per se violation of the federal Controlled Substances Act for a practitioner to issue a prescription for a controlled substance by means of the Internet without having conducted at least one in-person medical evaluation, except in certain specified circumstances.  Once the prescribing practitioner has conducted an in-person medical evaluation, the Ryan Haight Act does not set an expiration period or a mandatory requirement of subsequent annual re-examinations (although specific controlled substances, such as suboxone, may have their own rules).  Of course, this does not mean that conducting one in-person medical evaluation is sufficient in every clinical situation.  Even where the practitioner has conducted an in-person exam, a prescription for a controlled substance must still be issued for a legitimate medical purpose by a practitioner acting in the usual course of his or her professional practice.

Can a Health Care Provider Prescribe Controlled Substances via Telemedicine?

The Ryan Haight Act does not prohibit the use of telemedicine to prescribe controlled substances, and a provider may do so if federal and state requirements are met.  However, the challenge for many providers is understanding these laws and applying them to the processes of their specific service line or business.  There are solutions and approaches that can work for primary care practices, hospitals, telepsychiatry groups, and the like.  Moreover, the Ryan Haight Act has seven exceptions to the in-person medical evaluation requirement for when a prescriber is engaged in the practice of telemedicine.  For DEA purposes, keep in mind that “practice of telemedicine” is a defined term of art, and the exceptions are technical and specific.  Providers should not assume their approach to telemedicine or virtual care does, in fact, meet a “practice of telemedicine” exception under the Ryan Haight Act.  The next articles will discuss the practice of telemedicine exceptions under the Ryan Haight Act, as well as state laws.

What’s Next for the Ryan Haight Act?

In 2015, the American Telemedicine Association sent a letter to the DEA, advocating for provider-friendly changes to federal controlled substance prescribing rules.  Disclosure: attorneys in Foley’s telemedicine practice were contributing authors to the letter.  The letter urged DEA to open a special registration process allowing psychiatrists and physicians to prescribe controlled substances via telemedicine without the need for an in-person exam.  The ATA letter noted that “the interpretation of the [Ryan Haight] Act’s general prohibition of prescribing controlled substances by means of the internet has become overly restrictive.”

In 2016, DEA announced plans to issue a new rule to activate the special registration process allowing physicians to use telemedicine to prescribe controlled substances without an in-person exam.  The most recent notice of rulemaking stated the proposed rule was expected to be published in January 2017.  As of this article, the proposed rule has not yet been released, but is anticipated to be published this year.

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

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New Resources for Telehealth Chronic Care Management (CCM) Rules

Medicare’s 60-Day Proposed Refund Rule Imposes Significant Liability on Providers

More good news for hospitals, health care providers, and entrepreneurs interested in telehealth and Chronic Care Management (CCM).  CMS just recently introduced a new educational initiative called Connected Care: the Chronic Care Management Resource.  The initiative is designed to raise awareness of the benefits of CCM services for Medicare beneficiaries with multiple chronic conditions and to provide health care professionals with support to implement CCM programs.

CCM is a powerful, patient-oriented service covered by Medicare since 2015, and perfectly suited for tech-savvy providers and telehealth practices, as CCM may be provided via remote care services. CCM is another way health care providers and software companies can harness telemedicine technology to leverage staffing, improve patient care, increase doctor-patient contact, decrease inpatient length of stay, and ultimately reduce overall patient costs.  The CCM and Complex CCM billing codes pay providers on a monthly capitated (per patient per month) basis.

  • CPT 99490 allows eligible practitioners and suppliers to bill for at least 20 minutes of non-face-to-face clinical staff time directed by a physician or other qualified health professionals each month to coordinate care for beneficiaries who have two or more serious chronic conditions that are expected to last at least 12 months.
  • CPT 99487 is for complex CCM that requires substantial revision of a care plan, moderate or high complexity medical decision making, and 60 minutes of clinical staff time.
  • CPT 99489 is a complex CCM add-on code for each additional 30 minutes of clinical staff time.
  • HCPCS G0506 is an add-on code to the CCM initiating visit for providing a comprehensive assessment and care planning to patients.

CMS recognizes CCM as one of the critical components of primary care that contributes to better health and care for individuals, and holds promise for reducing overall health care costs.  Indeed, CCM can be used in many settings, including primary care, gerontology, and even in the hospital setting.  Hospitals offering outpatient CCM services may bill Medicare under the Outpatient Prospective Payment System (“OPPS”) for the facility portion of the service. In addition, Medicare will pay for the physician/practitioner time directing the CCM services under the Physician Fee Schedule.

Connected Care is a nationwide effort within fee-for-service Medicare that includes a focus on racial and ethnic minorities, as well as rural populations, who tend to have higher rates of chronic disease.  The initiative was developed by the CMS Office of Minority Health and the Federal Office of Rural Health Policy at the Health Resources and Service Administration.

Here are some of the resources available to help educate patients and health care providers on CCM services:

Hospitals, health care providers, and other companies using telehealth and non-face-to-face technologies to develop patient population health and care coordination services should take a serious look at CCM billing, and keep abreast of developments that can drive recurring revenue and improve the patient care experience.

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

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Florida Board of Medicine Hearing on Telemedicine and Medical Marijuana

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The Florida Board of Medicine will hold a public hearing on February 3, 2017 to discuss its proposed amendment to Florida’s telemedicine practice rules.  The proposed amendment, published December 8, 2016, is intended to clarify that physicians may not order medical cannabis or low-THC cannabis via telemedicine.

The amendment would add a new Section (5) to the Standards for Telemedicine Practice under 64B8-9.0141, F.A.C.  If the proposed amendment is finalized, the regulation would state as follows: “(5) Medical cannabis or low-THC cannabis, as defined by s. 381.986, F.S., may not be ordered by means of telemedicine.”

Interested physicians and providers may want to attend the public hearing, both to learn more about the Board’s position on medical marijuana and telemedicine, and to contribute their perspectives to inform the discussion.  Some points of potentially-useful clarification to discuss at the hearing may include, for example:

  • Whether or not a physician may conduct a telemedicine-based exam to qualify a patient for Florida’s compassionate use registry (and start the 90 day clock), assuming the physician subsequently conducts and in-person exam prior to ordering medical marijuana?
  • Whether or not a physician may use telemedicine-based exams for follow-up or interim consults with patients receiving medical marijuana?

Some states, like California, do not prohibit telemedicine-based examinations for medical marijuana, while others, like Colorado, require an in-person examination prior to recommending medical marijuana.  Even in states that allow telemedicine-based examinations for medical marijuana, providers should keep in mind that the examination for the condition for which medical marijuana is being recommended must be an appropriate prior examination and meet the standard of care.

What’s Next?

The Florida Board of Medicine public hearing will occur on February 3, 2017 at 8:00 a.m., at:

The Omni Orlando Resort at Championsgate
1500 Masters Boulevard
Championsgate, Florida 33896

We will continue to monitor the proposed rules for when the final version is published.

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

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The Joint Commission Bans Text Messaging for Patient Care Orders

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The Joint Commission, which accredits hospitals and other health care organizations, recently announced it will not permit hospitals and other health care organizations to use secure text messaging platforms to transmit orders. The announcement is the most recent in a back-and-forth series of guidance statements regarding the use of secure messaging in hospitals and other health care organizations.

In a 2011 FAQ, the Joint Commission stated it was not acceptable for physicians or licensed independent practitioners to text orders for patient care, treatment, or services to hospitals or other health care settings.  The Joint Commission reversed its position in May 2016, stating providers could “text orders as long as a secure text messaging platform is used and the required components of an order are included.”  The Joint Commission credited the evolution of health care communications technology as part of the reason for its decision to reexamine and allow provider text messaging.  Then, in July 2016, the Joint Commission “hit unsubscribe” on its guidance and delayed the use of text messaging until it had time to further consider the clinical and operational implications.

During that period, the Joint Commission worked with the Centers for Medicare & Medicaid Services (“CMS”) to develop guidelines for text-message-based orders to ensure consistency with the Medicare’s Conditions of Participation. As a result of this collaboration, The Joint Commission and CMS developed a set of recommendations contained in its new clarification on the use of messaging for patient care orders.  The guidance is summarized as follows:

  1. All health care organizations should have policies prohibiting the use of unsecured text messaging – that is, short message service (“SMS”) text messaging from a personal mobile device – for communicating protected health information.
  2. Computerized provider order entry (“CPOE”) should be the preferred method for submitting orders, as it allows providers to directly enter orders into the electronic health record.
  3. In the event that a CPOE or written order cannot be submitted, a verbal order is acceptable.
  4. The use of secure text orders is not permitted at this time.

The Joint Commission mentioned a few interesting factors that influenced this decision. In particular, the focus was on the technical capabilities of the modality of the communication.  It noted that secure text messaging of an order is an asynchronous interaction, whereas a verbal order allows for a real-time, synchronous clarification and confirmation of the order with the ordering practitioner.  Similarly, if a clinical decision support recommendation or other alert is triggered during the order entry process, the individual entering the order may need to contact the ordering practitioner for additional information.  When this type of alert is triggered during the entry of a verbal order, the entering practitioner can immediately discuss the issue with the ordering practitioner.  However, if this occurs with a text order, the delay in communication between the entering practitioner and the ordering practitioner may cause a delay in treatment.

Many of the Joint Commission’s data privacy and security concerns had been addressed through recent technological developments in the health care application space. Despite these advancements, the Joint Commission remains concerned about transmitting text orders even through a secure text messaging system due to the unknown impact of secure text orders on patient safety.  The Joint Commission will continue to monitor advancements in the field, and will determine whether future guidance on the use of secure text messaging is warranted.

Secure text messaging may be a convenient mode of communication for practitioners, but this recent guidance indicates that the Joint Commission and CMS do not approve of this use at hospitals or other health care organizations. Health care organizations should update their policies and procedures to ensure that text messaging in any form (secured or unsecured) is not permitted within the organization.

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

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