Executive Summary
On May 5, 2011, the Centers for Medicare & Medicaid Services (“CMS”) published a Final Rule revising the hospital and critical access hospital (“CAH”) Conditions of Participation (“COPs”) governing the credentialing and privileging of telemedicine1 practitioners (“Final Rule”). The Final Rule, effective July 5, 2011, will permit hospitals and CAHs contracting with distant-site2 telemedicine providers to rely on the credentialing and privileging decisions made by such distant-site providers when making recommendations on privileges for individual distant-site physicians and practitioners (“Practitioners”) providing services for hospital/CAH patients. This fast-track privileging process referred to by The Joint Commission (“TJC”) as “privileging by proxy” has been used by TJC-accredited hospitals for some time now but technically did not meet the requirements of the current CoPs.
The Final Rule is a welcome relaxation of the existing CoPs, which require hospitals and CAHs to go through the duplicative, arduous and time-consuming process of credentialing and privileging each and every Practitioner providing telemedicine services, even though these Practitioners have been fully vetted by their sponsoring telemedicine organizations. CMS’s stated goals of the revised CoPs are to: a) increase patient access to specialty services by eliminating barriers to the use of telemedicine; and b) reduce the burden on small hospitals and CAHs that may not have the resources and in-house expertise to adequately evaluate a telemedicine Practitioner’s qualifications. The Final Rule may be found in the Federal Register at: http://www.gpo.gov/fdsys/pkg/FR-2011-05-05/pdf/2011-10875.pdf
Background
The proposed rule was published on May 26, 2010. It sought to permit an optional and streamlined credentialing and privileging process only if the full credentialing and privileging was completed by a distant-site Medicare-participating hospital that was providing the telemedicine services. Under the proposed rule, a Medicare-participating hospital providing telemedicine services for hospitals and CAHs would examine and verify the credentials of Practitioners applying for privileges, then apply specific criteria to determine whether the individual Practitioners should be granted telemedicine privileges. The hospital or CAH receiving telemedicine services from the Medicare-participating hospital would then make recommendations to privilege particular telemedicine Practitioners to provide services at the hospital or CAH, based on the credentialing/privileging completed by the Medicare-participating hospital.
The proposed rule elicited numerous comments expressing concerns that CMS did not go far enough in its efforts to expand telemedicine services for beneficiaries. In response, CMS revised the proposed rule to permit distant-site telemedicine entities as well as distant-site Medicare-participating hospitals to perform the full credentialing and privileging function, subject to certain enumerated requirements summarized below. “Distant-site telemedicine entity” is defined in the Rule as “[an entity] that (1) provides telemedicine services; (2) is not a Medicare-participating hospital; and (3) provides contracted services in a manner that enables a hospital or CAH using its services to meet all applicable CoPs particularly those requirements related to the credentialing and privileging of practitioners providing telemedicine services to the patients of a hospital or CAH.” The Final Rule permits teleradiology groups, “Nighthawk” services, and non-Medicare participating hospitals to perform credentialing and privileging functions for telemedicine Practitioners on behalf of requesting hospitals and CAHs – subject to certain safeguards.
For more information on the proposed rule, please see Hall Render’s previous Health Law News article at: https://wp.hallrender.com/library/articles/642/Health%20Law%20News_06_03_10.html
Details and Discussion
Hospitals and CAHs wishing to use the streamlined credentialing and privileging process must ensure through written agreements with a distant-site hospital or telemedicine entity that:
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The distant-site telemedicine Practitioner is privileged at the distant site and a current list of the privileges is provided;
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The distant-site Practitioner holds a license issued or recognized by the State in which the hospital or CAH is located; and
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With respect to a distant-site Practitioner who holds current privileges at the hospital or CAH whose patients are receiving telemedicine services, the hospital/CAH has evidence of an internal review of the distant-site Practitioner’s performance of these privileges and sends such performance information to the distant-site for use in the Practitioner’s periodic appraisal, and, at a minimum, the information includes all adverse events resulting from the telemedicine services provided by the distant-site Practitioner as well as any registered complaints.
With respect to distant-site telemedicine entities only, the hospital and CAH must receive written assurance that the telemedicine entity’s credentialing and privileging process and standards meet the applicable CoPs. Further, the telemedicine entity must furnish services so as to permit the hospital and CAH to comply with all applicable CoPs for the contracted services. The hospital CoPs addressing medical staff issues have been revised to reflect the new requirements for credentialing and privileging telemedicine Practitioners.
The Final Rule also revised the CAH CoPs to add a new section, effectively adopted from the hospital CoPs, which addresses credentialing, privileging and appointment of telemedicine Practitioners (see 42 C.F.R. 485.616, new paragraph (c)). This new section obligates the governing body of the CAH to ensure through a written agreement that a distant-site hospital providing telemedicine services to the CAH meets specified requirements for the credentialing and privileging functions. Finally, a revised CAH CoP, 42 C.F.R. 485.641(b)(4), permits the periodic evaluation and quality assurance review of telemedicine Practitioners to be performed by either a distant-site hospital or, in the case of a telemedicine contract between a CAH and a distant-site telemedicine entity, by a (CAH) network hospital, QIO or equivalent entity or other qualified entity identified in a State rural health care plan.
Practical Take Aways
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Hospitals and CAHs do not have to use the streamlined credentialing and privileging process for telemedicine Practitioners – they can choose instead to operate as they did previously by fully credentialing telemedicine Practitioners.
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Hospitals and CAHs may want to review and revise their current medical staff bylaws to reflect this new option for credentialing and privileging telemedicine Practitioners.
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Hospitals and CAHs should review current and future relationships with distant-site providers and enter into or revise written telemedicine services agreements to comply with the requirements under the Final Rule. Hospitals and CAHs using telemedicine are expected to provide to surveyors, upon request, the most current telemedicine services agreement so CMS can verify distant-site telemedicine entities providing services are required to comply with CMS standards.
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While outside the purview of the Final Rule, as long as hospitals and CAHs are scrutinizing their telemedicine agreements, they should carefully consider the health information technology aspects of the arrangements.
If you have any questions or would like additional information about this topic, please contact your regular Hall Render attorney or:
1 “Telemedicine” as used in the Final Rule, means: “the provision of clinical services to patients by practitioners from a distance via electronic communications.” 76 Fed. Reg. 25551 (May 05, 2011). “Telemedicine [encompasses] the overall delivery of healthcare to the patient through the practice of patient assessment, diagnosis, treatment, consultation, transfer and interpretation of medical data, and patient education all via a telemedicine link. . . ” 76 Fed. Reg. 25556 (May 05, 2011).
2 “Distant-site” is defined as: “the site at which the physician or practitioner is located at the time the service is provided via a telecommunications system.” Section 1834(m)(4)(A) of the Social Security Act.
