TXT U L8R: Should Your Physician Be Texting Orders?

Many a health lawyer has been struggling with how to communicate the U-turn-laden road of whether hospitals should allow physicians to text orders. The bottom line is: NOT YET. One way to summarize the The Joint Commission's (TJC) position on texting orders is:

Up until 2011: "What is texting?"

2011: "No texting!"

May 2016: "You will be able to text—just hang on!"

July 2016: "No, no, no, you cannot text until you get guidance from us, along with our good friends at the Centers for Medicare and Medicaid Services (CMS). Hold your horses until September!"

On July 26, 2016, TJC announced a decision to delay the ban removal. (Got that? Triple negative = three U-turns ending at "DO NOT TEXT ORDERS AT LEAST UNTIL SEPTEMBER." ) CMS and TJC plan to release joint guidance in September 2016 to ensure consistency between the accreditation standards and the Medicare Conditions of Participation on this issue. The guidance will contain a set of Frequently Asked Questions. The ultimate goal is to lift the ban and allow hospitals (and other organizations) to use secure text messaging to transmit orders.

Once the guidance is issued and the ban lifts, hospitals and other entities will be able to use a secure platform to engage in secure texting. Previous TJC guidance has indicated that the platform must include at least: (1) a secure sign-on process; (2) encrypted messaging; (3) delivery and read receipts (side note: Do you ever wonder what happens if you say "No" to one of these things?); (4) date and time stamp; (5) customized message retention timeframes; and (6) a specific contact list of individuals authorized to receive and record texted orders.

If a hospital is going to plunge ahead (once the all-clear is given—please do not plunge ahead right now—have we confused you?), the hospital should ensure that its HIPAA-required risk assessment includes the use of texting through the secured platform. TJC also recommends developing and training on policies specific to texting. Hopefully, the doctors will be clearer in their texts than the three young daughters of one of your authors, who write things like "Idk! Gtg, brb!"—which would not be extremely informative for the individual receiving the order, unless that individual happened to be 17 years old. In fact, the texting policies should probably either establish acceptable norms or require the use of actual words.

For questions, please contact Sarah Coyne at (608) 283-2435/sarah.coyne@quarles.com, Jon Kammerzelt at (608) 283-2438/jon.kammerzelt@quarles.com, or your Quarles & Brady attorney.