What Orthopaedic Surgeons Should Know about the Legal Aspects of Telemedicine

The rise of telemedicine has transformed how patients and physicians interact. Electronic communication provides accessibility and convenience and permits patients to receive healthcare from their own homes. The maze of state regulations can be confusing and daunting for physicians to navigate. Each state has its own set of laws and regulations governing interstate medical practice. Many of the rules were written long before telemedicine was a consideration. It is critical for physicians to be diligent about following these regulations to avoid legal violations or exposure to medical liability.

Telemedicine expanded during the COVID-19 pandemic, but many states have rescinded emergency waivers that allowed for interstate communication. Three specific federal laws impact telemedicine. The Care for Mental Health Professionals Act allows for interstate mental health licensure across state lines—which does not affect orthopaedic practice. The Telehealth Treatment and Technology Act supports interstate recognition of medical licenses but does not require states to recognize out-of-state licensure. Finally, the Share Act also facilitates interstate healthcare by allowing healthcare professionals to be deployed during national emergencies and improve continuity of care for patients who travel or relocate out of state. Many emergency actions relaxing interstate restrictions on medical practice have now been rescinded.

State requirements
Typically, a physician using telemedicine to provide care to a patient who resides across state lines should be licensed in the state where that patient resides. Thirty-five states participate in the Interstate Medical Licensure Compact (IMLC), which permits cross-state licensing and practice of telemedicine across state lines. Despite the IMLC, states vary in telemedicine regulation requirements. Some states require physicians to fulfill certain requirements before participating in interstate telemedicine.

Despite adoption of the IMLC, many states continue to restrict telemedicine unless the physician is fully licensed in that state. Thirty states prohibit telemedicine practice without a full license. The remaining states either provide an option for expediting licensing for telemedicine practice, do not require a license but require physicians to register with the state’s board of medicine, or allow physicians to practice telemedicine in neighboring states without special permission.

Each state has regulations for interstate licensure. For example, in Indiana, physicians need to have a valid license and file certifications from the physician and the physician’s employer to provide telemedicine from another state. Mississippi requires anti-fraud protocols. Utah permits out-of-state physicians to provide only pro bono telemedicine services (Fig. 1).

There is significant variation from state to state regarding online prescribing of controlled substances. Some states only require establishment of a patient-physician relationship, whereas others require an in-person evaluation within a certain timeframe to legally prescribe medications.

Communication and documentation
Adherence to state regulations and documentation requirements is critical in the practice of telemedicine. Obtaining informed consent for telemedicine is also a critical step. Proper documentation of informed consent is essential for every telemedicine visit. Medical liability policies require following individual state regulations to cover telemedicine visits.

Ensuring patient privacy is also a key step in using telemedicine. A range of secure platforms are designed to ensure compliance with the Health Insurance Portability and Accountability Act (HIPAA). Many electronic health record programs as well as Doximetry, Facetime, and WhatsApp utilize secure data protection for telemedicine.

Common errors in telemedicine include miscommunication, mistranslation, and errors that occur with transcription of the visit. Telemedicine relies on technology, and common technology problems—including having a poor connection, sending the wrong files, misidentifying patients, and sending the wrong records—are all possibilities.

Electronic communication with patients using email or texting has been a progressively common tool in the practice of medicine and certainly can enhance the patient-physician relationship. However, these mechanisms of communication can raise privacy concerns, especially when sensitive information is transmitted. Email cannot establish a patient-physician relationship and should be used only as an adjunct to other types of encounters. Physicians who choose to communicate with text or email face additional issues, including validation of the identity of the parties and delays in receiving or transmitting information.

All communications need to ensure privacy. As such, standard email is not sufficiently private or secure. The patient’s decision to communicate via email or text needs to be documented clearly in the medical record.

Email is suitable for conversations that are not time sensitive. The communication is considered asynchronous, which may be useful in non-emergent situations. Additionally, all email is self-documenting but should also be attached to the patient’s medical record. Ensuring authenticity of both parties and quality of the data exchanged can be challenging with email. Physicians who use email continue to hold the same ethical responsibilities to their patients as in other, more traditional encounters.

Texting with patients is permissible under HIPAA regulations but only if the patient consents to this type of communication and is informed about the risks of unencrypted text messaging. Many types of text messaging, including WhatsApp or iMessage, are not HIPAA compliant, so physicians should use only secure platforms to communicate sensitive information to patients. Again, all text messages with patients, including date, time, and content, should be incorporated in the patient’s medical record.

Tools such as telemedicine and electronic messaging have the potential to improve patient satisfaction and understanding and can serve to strengthen the physician-patient relationship. However, setting boundaries around electronic communication helps to ensure that patients understand when this type of communication is appropriate.

Thomas Fleeter, MD, MBA, FAAOS, is in private practice in Reston, Virginia, with Town Center Orthopaedics. He is also a former member of the AAOS Now Editorial Board and chair of the AAOS Committee on Professionalism.