On May 5, 2011, the Centers for Medicare and Medicaid Services (CMS) released a final rule that will make it less burdensome for hospitals to use telemedicine when treating patients. The final rule, which takes effect on July 5, 2011, removes credentialing and privileging burdens for hospitals and critical access hospitals (CAHs).
CMS anticipates that the final rule will provide more flexibility to small hospitals and CAHs that often have limited numbers of primary care and specialized providers. By removing unnecessary burdens in the credentialing of telemedicine providers, CMS seeks to improve patient care by increasing access to needed services, making necessary interventions more readily available, and enhancing patient follow-up in the management of chronic diseases. The smaller hospitals will now have the option to rely on data from the larger facilities when giving doctors permission to practice remotely, as opposed to conducting their own credentialing process.
Currently, Medicare conditions of participation (CoPs) require hospitals and CAHs to perform the same credentialing and privileging procedures for both on-site physicians and those providing services by telemedicine. The current CoPs do not permit hospitals to rely on the privileging decisions of other hospitals. CMS concluded that its current requirements were often duplicative and unnecessarily burdensome, particularly for small hospitals and CAHs. It recognized that small hospitals and CAHs often do not have access to a medical staff with the requisite clinical expertise to evaluate and privilege the various specialty physicians that could provide the hospital with telemedicine services.
The final rule is consistent with The Joint Commission’s (TJC) practice of privileging by proxy, which had been found not to comply with the current credentialing CoPs. Privileging by proxy allows one TJC-accredited facility to accept the privileging decisions of another TJC-accredited facility and had been used by TJC-accredited hospitals in the credentialing of telemedicine providers. If the final rule had not been adopted, TJC would have had to revise its standard to ensure conformity with the credentialing CoPs, and TJC-accredited hospitals would have to use the same rigorous standards when credentialing both on-site and distant site telemedicine practitioners. According to TJC, removing the conflict between the CoPs and the TJC privileging by proxy standard lessens hospitals’ and CAHs’ regulatory burdens and provides them more flexibility.
The final rule amends the CoPs for both hospitals and CAHs to provide such facilities the option of streamlining their credentialing and privileging processes for telemedicine practitioners. While the current CoPs for credentialing and privileging of medical staff require the governing body of a hospital to make all privileging decisions based upon the recommendations of its medical staff after examination and verification of applicants’ credentials, the final rule allows hospitals and CAHs to rely on the credentialing decisions of the distant site facility where the practitioner offering the telemedicine services is located.
The final rule allows hospitals and CAHs to rely on the credentialing decisions of both Medicare-certified hospitals and non-hospital telemedicine providers, such as ambulatory surgery centers, radiology interpretation services, and other telehealth vendors. CMS concluded that allowing hospitals and CAHs to utilize the optional streamlined privileging process when contracting with nonparticipating distant site telemedicine entities, in addition to Medicare-certified hospitals, would help accomplish the stated goals of the rule, which are to increase patient access to care and reduce the burdens on small hospitals and CAHs.
Thus, under the final rule, a hospital or CAH may rely on the credentialing and privileging decisions of a distant site facility where the practitioner is located, provided that the governing body of the hospital or CAH ensures in a written agreement with the distant site provider that the following conditions are met:
1. The distant site provider is either a Medicare-participating hospital or a facility that, while not Medicare-certified, has a credentialing and privileging process that meets all of the applicable CoPs.
2. The practitioner providing the telemedicine services is privileged to do so by the distant site provider and a list of the telemedicine practitioner’s current privileges is provided to the receiving facility.
3. The practitioner providing the telemedicine services is licensed or recognized in the state where she or he is located and in the state of the facility receiving the telemedicine services.
4. The receiving hospital provides to the distant site facility internal review information, which includes, at a minimum, all patient complaints and adverse events on the practitioner providing the telemedicine services.
Hospitals and CAHs that decide to take advantage of this less burdensome credentialing process should watch for further guidance from TJC, review and revise as necessary their medical staff bylaws to allow for this flexible credentialing option, and work with counsel to prepare fully compliant written agreements with the distant site telemedicine facilities.
The final will take effect on July 5, 2011. TJC is expected to publish additional information on its privileging by proxy practice by the same date.
Jennifer Hoover Clark is an associate in Balch & Bingham, LLP’s Health Care Law Practice Group.
