As physicians were watching the clock tick toward the new year, the Centers for Medicare and Medicaid Services issued new warnings about the texting health care information.

CMS made clear that texting orders is clearly prohibited.  In other words: don’t use i-message to text orders to a nurse or colleague.  It applies to orders on patient care, but doesn’t address other texted information.

I had written in a recent issue of the American College of Gastroenterology’s monthly magazine, in its Law Minds column, about this issue.

In doing so, though, CMS made clear that use of a secure platform that in effect allows providers who subscribe to that platform to in effect text each other – through the proprietary platform as opposed to normal i-messaging – is okay.

CMS seems to have waivered in recent months on what is allowed.  CMS, which in its guidance to surveyors, regulates providers who participate in Medicare and Medicaid, is separate and distinct from the Office of Civil Rights of the Department of Health and Human Services, which enforces HIPAA security rules.

CMS released a memo (click here) to state surveyors in late December.  It recognized the value of instant communication via texting on smart phones, but made clear that it can be done only through secure platforms.

By “secure platforms,” CMS means proprietary apps that the industry has developed for providers to buy.  A physician group, for example, buys the app, installs it on all its physicians’, nurses’ and employees’ phones and the team communicates amongst themselves via that app.  The app must be “secure, encrypted and minimizes the risks to patient privacy and confidentiality as per HIPAA regulations,” says the memo.

It would be prudent for all healthcare providers now to amend their HIPAA Security Plans to prohibit texting of physician orders.   Providers should explore what apps are available for this type of secure texting to fit their needs.


Ann Bittinger has assisted physicians for nearly 20 years with their employment agreements.  She offices in Jacksonville, Florida, where her company, The Bittinger Law Firm, is based.