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PRIVACY UPDATE: Texting Patient Information

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January 25, 2018
Buchalter Client Alert

By: Anne M. Brendel

CMS has issued a memorandum clarifying its position on texting and recognizing that the use of texting has become an essential and valuable means of communication between health care team members.  The takeaways from the memorandum are as follows:

  • All healthcare providers:
    • Texting patient information between a patient’s health care team members is permissible (if accomplished through a secure platform).  Note that the disclosure of information must still meet the minimum necessary standard under HIPAA.
  • Hospitals:
    • Texting of patient orders is prohibited, under 42 CFR 489.24(b) which requires that hospitals confidentially maintain medical records for inpatients and outpatients and subsection (c) which requires that the medical record include patient orders.  Computerized Provider Order Entry (CPOE) is the preferred method of order entry by a provider.

The memorandum appears to have been issued in response to the Health Care Compliance Association’s Report on Medicare Compliance, which raised concerns about CMS’s no texting policy.  The report states that last year CMS sent emails to at least two hospitals stating that texting of patient information is not permitted – even when the texts are sent through a secure text messaging application.  In these letters, CMS cited concerns about privacy, security, and the integrity of medical records.

CMS’s texting policy now mirrors the Joint Commission’s stance on the subject.

 

 


This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. No statement in this communication constitutes legal advice nor should any communication herein be construed, relied upon, or interpreted as legal advice. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. For more information, visit www.buchalter.com.

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