California licensing laws are blocking a patient’s access to care from a medical specialist in another state, leaving her to go without help or make a 14-hour car trip for treatment in person.
Shellye Horowitz of Trinidad, California, suffers from a rare bleeding disease affecting women and girls known as hemophilia A. There are no physicians in or near her coastal town trained to treat hemophilia A. After undergoing unsuccessful surgery at a San Francisco Bay Area hospital, Horowitz sought care via telehealth from specialists at a hemophilia treatment center in Portland, Oregon.
California is one of 30 states that require physicians who engage in telehealth to be licensed in a patient’s state of residence. Doctors who violate this mandate by consulting with out-of-state patients in need of care face criminal charges and stiff fines that can jeopardize their medical careers. During the pandemic, some of these restrictions were lifted, but they have since been reimposed, with devastating consequences for people suffering from serious or rare illnesses.
Court to Decide
Horowitz is suing the state in a federal court, represented pro bono by the Pacific Legal Foundation (PLF), which says California’s limits on telehealth are unconstitutional.
“Limiting access to medical specialists benefits no one,” said Caleb Trotter, an attorney with PLF, in a press release. “There is no excuse for Californians—or anyone—to suffer simply because a member of their care team is in another state.”
Joining Horowitz in the PLF suit is Sean McBride, M.D., a radiation oncologist at Memorial Sloan Kettering Cancer Center in New York. McBride uses telehealth to consult with out-of-state patients and to discuss whether they should travel to New York for advanced in-person treatments.
McBride is licensed and board-certified in New York, but not in California, and thus barred from practicing telehealth with patients in the Golden State. California patients seeking his care must fly cross-country for in-person office visits and cannot do follow-up consultations with him over the phone.
Constitutional Questions
“California’s telehealth restrictions are not just wrong, they’re also unconstitutional,” PLF says in an article on its website. “Placing undue burdens on both out-of-state physicians and California patients—that far outweigh any benefits—violates the Constitution’s Dormant Commerce Clause and Privileges and Immunities Clause.”
The Sacramento-based foundation adds that “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 government cannot use licensing requirements to impede the exchange of information between patients and their doctors.”
The case, Sean McBride et al. v Hawkins, was filed on May 16 in the U.S. District Court for the Eastern District of California.
California is not the only state whose telehealth restrictions are undergoing legal challenges. After the New Jersey State Board of Medical Examiners last year reinstated restrictions on out-of-state telehealth consultations, which had been suspended during the COVID-19 pandemic, a Boston-based physician found herself barred from consulting with cancer patients in the Garden State over the phone or via Zoom.
Shannon MacDonald, M.D., a pediatric oncologist and proton therapist at Massachusetts General Hospital, is licensed in several states, but not in New Jersey. MacDonald is also represented by PLF in a lawsuit against New Jersey officials that alleges the same unconstitutional violations of her rights as those raised in the California case. The case, Shannon MacDonald et al. v. Otto Sabando, was filed in the U.S. District Court for New Jersey on December 13.
Regulations Protect Industry Insiders
Haley Dutch, an attorney with PLF, believes that onerous licensing restrictions, like those in California, put high-quality health care out of reach for people who need it the most.
“The telehealth restriction addressed in our lawsuit harms not only our clients, but vulnerable patients throughout the country,” Dutch told Health Care News. “In the United States, industry insiders tend to regulate their own professions, especially via licensing schemes. Studies show that these licensure boards act in their own self-interest, rather than in the best interest of the public.
“In the context of telemedicine, these duplicative and needless licensure requirements can keep patients from accessing lifesaving health care,” said Dutch. “California should look out for the interests and wellbeing of all its citizens, not just the powerful insiders of the medical industry. It should update its rules to allow licensed physician-specialists to consult and follow up with patients wherever they may be. Such reforms increase access to care for all Americans.”
Nothing Learned from Pandemic
The coronavirus pandemic led to the expansion of telehealth, which is now being rolled back in many states, says Jeff Stier, a senior fellow at the Consumer Choice Center.
“The liberalization of restrictions on telemedicine became a large-scale natural experiment on what would happen if patients could see the doctor of their choice using the same technology we use every day—but with enhanced privacy,” said Stier.
“The outcome solidified both patient and provider comfort with telemedicine. The myriad benefits were pronounced and tangible, and any feared risks never materialized,” said Stier. “Ironically, the courts, which are still widely using Zoom for their business, will have the final say on whether doctors and patients will have the same freedom.”
Bonner Russell Cohen, Ph.D. (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research.