Telemedicine visits skyrocketed during the pandemic, but
In the complaint filed on December 13 in New Jersey District Court, plaintiff Shannon MacDonald, MD, radiation oncologist at Massachusetts General Hospital, Boston, said that New Jersey’s telehealth rules make it illegal for her and other out-of-state specialists to consult with and treat residents who could benefit from their unique expertise, unless they first obtain licensure through the medical board.
While she currently maintains licenses in six states, New Jersey’s application process can take several months and requires an initial fee of $550, plus additional expenses for a background check and fingerprinting, court documents said.
Physicians providing telehealth services to New Jersey residents without a state-authorized medical license are subject to up to 5 years in prison and criminal and civil fines exceeding $10,000.
“Every day, my ethical obligations to my patients are in direct conflict with the legal framework,” said Dr. MacDonald.
She and coplaintiff Paul Gardner, MD, neurosurgical codirector of the Center for Cranial Base Surgery at the University of Pittsburgh Medical Center, are represented by the public interest law firm Pacific Legal Foundation, which recently sued Louisiana’s governor over its medical board diversity rules.
The lawsuit names Otto Sabando, DO, president of the New Jersey State Board of Medical Examiners. Representatives for Dr. Sabando and the medical board did not respond to a request for comment.
The complaint describes the care Dr. MacDonald provided several years before the pandemic for an out-of-state patient, J.A., also named as a plaintiff, who was diagnosed with pineoblastoma at 18 months old.
After initially undergoing treatment in New York, court documents indicate that J.A.’s medical team referred him to Dr. MacDonald “because of her nationally recognized expertise in proton therapy” targeting rare childhood cancers. Dr. MacDonald remotely reviewed J.A.’s scans and discussed options before his family pursued treatment with her in Boston.
Dr. MacDonald said that allowing more patients like J.A. to use telehealth to access services when specialists are unavailable in their state would go a long way toward achieving health equity. She says it could reduce the financial burden of travel and lodging expenses and provide timely consultations and follow-up care.
Many states, including New Jersey, waived or eased licensing regulations during the pandemic so physicians could temporarily practice in other states. Since those emergency orders have ended, physicians must again seek licensure in the states where their patients are located or potentially be subjected to fines or other penalties by state medical boards.
New Jersey Governor Phil Murphy signed a law in 2022 joining the Interstate Medical Licensure Compact, an agreement that offers a streamlined process for physicians already licensed in their home states to obtain licensure in 37 other member states as well as the District of Columbia and Territory of Guam. However, the lawsuit alleges that applications still take weeks and pose significant administrative and financial barriers for physicians.
Telehealth in a Post-COVID World
“Until COVID, we didn’t realize that a telephone call really was practicing medicine,” said Dr. MacDonald. “After being allowed to do telemedicine consultations across state lines for a year and 2 years for follow-ups, I thought it would last forever, but it’s placed a spotlight on what we cannot do.”
Dr. MacDonald, who recently penned a related editorial in the Wall Street Journal, said laws regarding interstate practice are outdated.
“They made sense in the preindustrial era when you had to be in the same location as your patient, but they make little sense in the modern era when distance disappears over the Internet or telephone,” she said.
The issue isn’t unique to New Jersey. Caleb Trotter, JD, attorney for the Pacific Legal Foundation, said that 30 states prohibit doctors from conducting telemedicine services in states where they are not licensed.
“Some hospitals instruct doctors and administrators to ask the patient where they are physically located at the beginning of a telehealth appointment, and if it isn’t a state where the physician is licensed, they are instructed to end the appointment immediately,” Mr. Trotter said. “A win in New Jersey would solve a very real problem for these [patients] of not having convenient legal access to specialists.”
Neither Dr. MacDonald nor Dr. Gardner have had any enforcement actions taken against them, said Mr. Trotter. Still, he said the New Jersey attorney general’s office reminded physicians last year that state licensure rules apply to out-of-state doctors using telemedicine to conduct follow-up appointments.
In November, the Center for Health Law and Policy Innovation at Harvard Law School, Cambridge, Massachusetts, proposed telemedicine reforms, including exceptions for the care of established patients and screening for specialty referrals.
Dr. MacDonald hopes the lawsuit will increase awareness of telehealth laws and spur changes.
A version of this article appeared on Medscape.com.