- The Joint Commission is scrapping proposed telehealth amendments to its accreditation standards that would have forced health systems to obtain patient consent and predict a patient’s financial responsibility prior to services rendered.
The proposed changes were unveiled in May “to account for direct-to-patient telehealth services,” but abandoned in September after critics said the new standards would be more restrictive than any other state or federal telemedicine guidelines.
The proposed changes would have amended two existing standards and created one new standard:
For the Provision of Care standard, PC.01.01.01, the commission recommended adding a new Element of Performance requiring that hospitals have “a process to confirm the location of the patient in order to assign a provider in accordance with licensure requirements and law and regulation.”
For the Rights and Responsibilities of the Individual standard, RI.01.03.01, under which providers are responsible for explaining proposed care, treatment and services, the commission proposed adding that the discussion include ”the type of modality that will be used (for example, telephone, video, asynchronous communication).”
In a proposed new standard, R.01.08.01, the commission indicated a hospital must inform each patient about
- His or her direct-to-patient telehealth services.
- The care, treatment, and services that the hospital provides either directly or by contractual arrangement.
- Charges for which they will be responsible prior to the provision of care, treatment, and services.
- The provider’s name, credentials and hospital contact information.
Those changes caught the eye of Nathaniel Lacktman, a partner in the Foley & Lardner law firm and chairman of its telemedicine industry team. In a Sept. 12 blog, he pointed out they were vague in defining “direct-to-patient telehealth,” and placed the burden on providers to meet strict new guidelines on patient consent and notification of financial responsibility.
Lacktman said the patient consent concept is a divisive issue.
“Indeed, many states have deliberately elected not to impose a telehealth informed consent requirement,” he said. “Other states, like Oklahoma, have eliminated their prior informed consent requirement, realizing it can be cumbersome and largely unnecessary, as most patients who choose to obtain a telemedicine service are fully capable of realizing the treating physician is, by definition, not physically in-person in the same room as the patient.”
“Unfortunately, the [proposed amendment] would essentially require all Joint Commission-accredited bodies to obtain patient consent to telehealth services, a requirement more restrictive than many state laws,” he said.
Lacktman also took issue with the proposed new standard, saying it isn’t well-defined, may cause considerable confusion and might even conflict with federal law.
“For example, it is unclear if the Joint Commission expects a hospital to fully disclose to a patient the nature of the hospital’s contracted telehealth arrangements<’ he said. “While hospitals and healthcare providers should always provide their patients with information about financial responsibility, the current confusion and inconsistency regarding coverage of telehealth service (particularly among commercial health plans) can make it difficult for a hospital to readily predict a patient’s financial responsibility (to say nothing of assessing in-network vs. out-of-network benefits for telehealth services).”
“Moreover, requiring a hospital to inform a patient about their financial responsibility before delivering telehealth services can directly conflict with federal Emergency Medical Treatment and Active Labor Act (EMTALA) requirements (under which a hospital must treat/stabilize the patient without regard to the patient’s ability to pay),” Lacktman added. “Hospitals are allowed to utilize telehealth in their emergency department services, and it is unclear if the Joint Commission has reconciled these proposed Standards with other applicable federal laws such as EMTALA.”
“It may be better if Standard RI.01.08.01 were to simply defer to current laws, and instead require the accredited organization to adhere to all applicable state and federal laws regarding these issues,” Lacktman concluded. “Otherwise, the Standard imposes a burden on hospitals and providers above and beyond what is required under state and federal laws.”
This isn’t the first time the Joint Commission has walked back plans to regulate telemedicine.
Last year, the commission lifted its five-year-old ban on text messaging for providers in April, then reinstated it in July, then came out with a revised guidance in December, ultimately saying physicians could use a HIPAA-compliant platform to send text messages to each other but couldn’t text patient care orders.