A Boston-based physician who specializes in the treatment of rare childhood cancers is suing the New Jersey State Board of Medical Examiners for barring out-of-state physicians from telehealth consultations with Garden State patients across state lines.
The case, Shannon MacDonald, M.D., et al. v. Otto Sabando, filed in the U.S. District Court for New Jersey, on December 13, arose after the board reinstated restrictions on interstate telehealth suspended during the COVID-19 pandemic.
Follow-up Consultations
After learning in 2012 that their 18-month-old son, Jun Abell, was suffering from a rare, aggressive brain tumor, the toddler’s parents, then living in New York, reached out to Shannon MacDonald, M.D., a pediatric oncologist and proton therapist at Massachusetts General Hospital. MacDonald treated the child successfully over two months of intensive care, after which he was discharged.
Now in his early teens, Jun has remained cancer-free but undergoes periodic checkups via remote consultations with McDonald to make sure the tumor hasn’t returned. Meanwhile, the Abell family moved from New York to New Jersey.
But now that New Jersey has reimposed pre-pandemic telehealth restrictions, MacDonald is being charged by New Jersey officials with practicing medicine across state lines without a license from the state
Law Benefits No One
New Jersey—and other states—require physicians who engage in telehealth in to be licensed in the state; MacDonald is licensed in several states, but not New Jersey.
The restriction on licensure harms patients, says the Pacific Legal Foundation (PLF), which represents McDonald.
“Limiting access to specialists in rare cancers benefits no one,” states a summary of the case on the PLF website. “Patients seek out highly accomplished medical specialists because of their expertise. Without telehealth, these patients are less likely to receive treatment from those specialists.”
Constitutional Issues
The PFL says the restriction is not only wrong but unconstitutional.
“Placing undue burdens on both out-of-state physicians and New Jersey patients that far outweigh any benefits violates the Constitution’s Dormant Commerce Clause and Privileges and Immunities Clause,” states the PLF. “Also, just as physicians have a First Amendment right to speak with potential and existing patients via telehealth, physicians and their patients have the right to receive information from each other.”
The restriction also violates the parents’ 14th Amendment due process rights, says the summary, stating “parents have the fundamental right to direct the lawful medical care of their children.”
Pandemic Made the Point
PLF argues the suspension of telehealth restrictions by every state during the pandemic should be made permanent, saying, “This small, common-sense act unleashed a new era in patient care.”
“Cancer care in particular benefitted from the rules,” the PLF notes. “At the pandemic’s peak, cancer care was the most common condition addressed in interstate telehealth visits, fully accounting for 10% of those visits nationwide.”
The public health emergency showed telehealth is a viable way to increase access, says Matt Dean, senior fellow for health care policy outreach at The Heartland Institute, which co-publishes Health Care News.
“Telemedicine’s trial-by-fire, beginning in March 2020, was one of the few good things to come out of the COVID-19 pandemic,” said Dean. “Since then, doctors have stepped up and found ways to safely treat patients remotely. Billing, data security, and safety concerns were addressed without almost any of the biggest problems predicted by opponents of telemedicine.”
‘Licensure Requirements Can Be Deadly’
This case is an instance of the widespread problem of restrictions on work in the United States, Caleb R. Trotter, PLF’s lead attorney, told Health Care News.
“A general problem with occupational licensure in the United States is that industry incumbents regulate and oversee the profession,” said Trotter. “Time and again, studies show that licensure boards act on the self-interested incentives inherent in their structure, rather than in the best interest of the public.”
Patients are harmed by such regulations, says Trotter.
“In the context of telemedicine, duplicative licensure requirements can be deadly when they limit access to specialty care not readily available in a patient’s home state,” said Trotter. “New Jersey, and all states that haven’t done so, should update their rules to allow licensed physician-specialists to consult and follow up with patients wherever they may be. Such reforms increase patients’ access to care without putting the public’s health at risk.”
Interstate Compacts Post-pandemic
With pandemic-era waivers now gone, some 30 states have re-imposed restrictions, though Zoom calls and other virtual conference options are far more prevalent today than before the pandemic, says Dean.
“Many states are participating in interstate compacts and licensing reciprocity agreements to allow provider-patient relationships to continue as the special COVID-19 laws that allowed that care finally sunset,” said Dean. “The success of these new laws, such as the counselors compact, which connects patients and their counselors across 28 states, recognizes the ability of states to protect patient safety while increasing access through telemedicine.”
Licensing Violations as Criminal
The unlicensed practice of medicine is a criminal offense, says Dean.
“Doctors should not be criminally charged for treating a patient to whom they owe a duty to care,” said Dean. “Indeed, doctors could be placed in a Sophie’s choice: either continue to treat the patient and violate state law (in this case, New Jersey’s) or violate the American Medical Association’s professional code of conduct, which calls for the doctor to treat the patient even if it puts the physician in harm’s way.
“A good case could be made that terminating the relationship could constitute negligence given the serious consequences of terminating care compared with the relatively arbitrary compliance rules,” said Dean.
Bonner Russell Cohen, Ph.D. (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research.