When telemedicine limits on practicing across state lines were relaxed in the pandemic, many patients and doctors experienced a great sigh of relief: Connecting by phone or video chat made for easier appointments, though not always perfect ones.
But with the end of the public health emergency related to the pandemic, the telehealth restrictions were re-imposed in a patchwork way — meaning that in some states, doctors cannot practice across state lines. And while for some people it was an inconvenience, for some patients and doctors an end to medicine across state lines is a major development.
Three such patients and two doctors are at the center of a lawsuit filed by the Pacific Legal Foundation to gain the right to see doctors across state lines.
One is a New Jersey boy, Jun Abell, who had a catastrophic brain tumor at the age of 18 months. After multiple surgeries and six rounds of chemotherapy, the doctors in his then-home state, New York, referred him to Dr. Shannon MacDonald, a radiation oncologist at Massachusetts General Hospital in Boston. She is known for expertise in pediatric oncology and proton therapy.
The family moved to Boston for two months for intense treatment. It was successful, and he moved back home. Now 11 years old and living in New Jersey, he has checkups with Dr. MacDonald by telemedicine, which lets him and his family, including his father, Michael, avoid trips to Boston and avoid changing doctors.
But now, New Jersey has reinstated its telehealth rules, requiring that doctors who do telehealth with New Jersey patients must be licensed in New Jersey.
Another such patient is Hank Jennings, a New Jersey man who, during his freshman year of college, was diagnosed with giant craniocervical junction chordoma. After consulting with Dr. MacDonald, Hank and his mother traveled to Pittsburgh for treatment with a University of Pittsburgh neurosurgeon, Dr. Paul Gardner, who specializes in skull base surgery. The complaint says Jennings still has regular follow-up calls with specialists in Pennsylvania, but that “New Jersey’s telehealth restrictions make his follow-up calls from home illegal.”
‘Not a New Jersey-only problem’
Caleb R. Trotter, an attorney for the Pacific Legal Foundation, said the two cases are at the center of what he describes as “not a New Jersey-only problem.” The foundation brought its case in New Jersey because the two doctors and patients and families were willing to challenge the restrictions in court, and to seek a legal precedent to use in follow-up cases. The foundation is “a public interest law firm” that for 50 years has “represented your average Americans, small businesses to protect their individual rights, property rights, and to protect them from government overreach,” Trotter said.
“Government particularly, and any other defenders of the New Jersey law will have a hard time looking at this case, and really feeling good about defending the New Jersey law in this context,” Trotter said in a Zoom interview.
He did note that the foundation has taken care to distinguish this type of medical care from garden-variety primary care.
“This is about the out-of-state specialist, or care that just isn’t available in your given state,” he said. “And we are only talking about the consultation and the follow-up aspect, none of the actual treatment. With that context, I think by and large lawmakers and policymakers will agree that changes need to be made. And I don’t think that that conversation will stop at New Jersey’s borders.”
“This is a real problem, particularly in specialty care,” he added. “It’s a problem — aside from the practical realities for patients and physicians on a day-to-day basis — that is so severe that it rises to constitutional dimensions.”
Travel, or switch doctors
Under these licensing restrictions, patients like Jun and Hank either have to travel to Massachusetts or Pennsylvania for follow-up visits, or abandon treatment with these doctors.
Are other such cases coming to the courts? Trotter said there is one about telemedicine, specifically talk therapy, brought by the Institute for Justice, challenging telehealth restrictions in New York. That has so far not been successful, he said.
Telemedicine practices during the pandemic started out being somewhat chaotic, partly because the healthcare system had long insisted that a doctor and a patient need to be in the same place at the same time physically for good medicine to take place. When Covid made that impractical and even undesirable, doctors, hospitals, urgent cares and others scrambled to come up with a workable system.
Trotter said it was something like a “live action experiment,” when regulators, clinicians and the public had concerns about whether it was actually possible to do telemedicine practically and in a financially viable way, and observing privacy strictures.
In some cases the payment system was the problem. In other cases, licensing across state lines was the problem — but many systems and doctors got credentials in other states, to make it work. Regulations of who had to be credentialed where seemed to work pretty well, for a time. Some states issued waivers, which lasted for a while; others made streamlined licensing processes.
Rolling back access
Then one by one, starting as early as 2021, both legislatures and medical boards began rolling back telehealth access, reverting to pre-pandemic rules.
“They figured out ways to deal with with concerns and it largely worked very, very well,” Trotter said. For many people, telemedicine was a convenience, allowing them to avoid going to the doctor’s office, sitting in the waiting room, spending all of 5 minutes with the doctor, and going home — and the removal of this flexibility is an inconvenience.
But for others, like those with specific high-complexity medical issues, and doctors in another state, “now, to have it taken away once it was working so well, without really any seemingly bad consequences from it, has been quite a shock.” With telemedicine, a patient can get a scan locally, have it sent to an out-of-state doctor, and have a telemedicine consultation for a checkup. With new restrictions, they’ll need to travel or switch doctors.
“Honestly, it’s a good example of the various legislatures and boards of medicine have failed to really do their job and update their rules and bring them in into the modern day,” Trotter said.
‘These are real burdens’
“We’ve heard stories, that there are people who just do not go get that specialty care, because they can’t afford to travel,” Trotter said. “Especially if it’s a pediatric patient, where the whole family or at least a family member needs to go with them. These are real burdens. And then the follow-up aspect, after treatment is received: If someone has to travel every time for a follow-up that could very easily be conducted over the phone just to say, ‘Are things going well? We reviewed your scans, everything is fine. See you next year.’
“If you have to fly across the country to do that, physicians have told me that they’ve seen a big drop-off in the number of people engaging with that follow-up care, which they view as critical to keep an eye on things and make sure there aren’t recurrences, in particularly rare cancers and diseases. So the consequences are severe. That’s why we’re bringing a constitutional lawsuit over it: It’s not just a mild inconvenience at stake here.”
The plaintiffs are the two doctors; the college student, Jennings; and Jun Abell, the younger boy from New Jersey and his father, Michael Abell, Trotter said.
Constitutional grounds
Grounds for the complaint include the First Amendment, which does not allow govrnment to restrict conversations between patients and their doctors based on the content of the discussions, and the Fourteenth Amendment’s due process clause, which “does not permit the government to restrict the ability of parents to direct the medical care of their children,” the complaint says. Thus the plaintiffs say their constitutional rights have been violated.
The complaint was filed against Otto Sabando, president of the New Jersey State Board of Medical Examiners, which is responsible for legislating and regulating the practice of medicine in New Jersey. It says that New Jersey law requires that any medical professional practicing in New Jersey must have a New Jersey license to practice.
Without such a license, the complaint says, a medical professional practicing in New Jersey is essentially practicing medicine without a license, guilty of a crime in the third degree, punishable by three to five years in prison and a fine of up to $15,000, plus civil penalties.
Other medical decisions
Adding to the context, Trotter noted that the claim on behalf of the parent, Michael Abell, “is premised on his fundamental right as a parent to direct the the lawful medical care of his child.”
“That word lawful is actually doing a lot of work because as you know, growing controversies around abortion care and gender-affirming care are boiling up in the courts. Some people have concerns that — if somebody lives in a state where either abortion or gender-affirming care are banned, particularly for minors — then if telehealth is free, what’s to stop them from getting that treatment with a physician out of state and violating the policies of the state they live in?
“Our case is distinguished from those by the claim that it is lawful in in the state that they live in. So J.A. sought proton therapy, radiation therapy, which is clearly legal in New Jersey. I’m not aware of it being illegal anywhere. So there’s no problem New Jersey sees with the treatment itself, it’s just the doctor providing it.”
Trotter said the Pacific Legal Foundation is representing the five plaintiffs pro bono.
What you can do
If you are a New Jersey patient — or a patient in another state with similar restrictions (see below), what can you do?
“if your physician is out of state and not licensed in New Jersey, then frankly, it’s up to you. And it’s up to them whether they’re willing to violate the law. From a legal standpoint, for patients, it’s all on the physician because technically, they would be practicing medicine in New Jersey without a license.
“I do know some of the hospitals from an administrative standpoint — if a telehealth appointment is coming up like this, someone will be on there like, ‘All right, where are you, the patient, physically located right this second?’
“And if that state does not correspond with where the physician is licensed, then the appointment will be ended. So their only option will be to travel in person to a state where that doctor’s licensed to see them, or go without. Of course, the New Jersey legislature could change this at any time as well.”
Licensure is a state function, he said, so a change in licensing at the federal level is unlikely and would itself perhaps be unconstitutional under the 10th Amendment, which says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Since the pandemic began, he said, some states have created telehealth-specific registries.
“If you’re Dr. McDonald in Boston, and you expect to have patients in Florida that you’ll see via telehealth, you can just register with Florida, give them all of your necessary information, so that there’s a an aspect of supervision there,” he said. “And then you’re free to go about about your business since you’re licensed in another state. A couple other states have done that. So there are ways of doing it that don’t require a massive overhauling of medical licensure in every state.”
Other states
“At least 30 states now either ban or severely restrict telehealth appointments with doctors licensed out-of-state,” the Pacific Legal Foundation wrote in a post on the topic. “If you live in the following states, you cannot have telehealth appointments with doctors licensed out-of-state:
Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Kentucky, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Washington, Wisconsin, and Wyoming
“
States with a special telehealth license that’s easier for out-of-state doctors to obtain than a full medical license in the state include Georgia, Louisiana, Nevada, New Mexico, Oregon, Tennessee, Texas, and Vermont. In eight other states — Arizona, Delaware, Florida, Indiana, Kansas, Maine, Minnesota, and West Virginia — doctors need to register with, or get a waiver from, the state medical board.
The District of Columbia, Maryland and Virginia have reciprocity agreements. Pennsylvania lets doctors from adjoining states get a special telehealth license, as long as those states do the same. Utah lets out-of-state doctors practice freely if they are pro bono.
The Federation of State Medical Boards keeps a map and chart detailing what is permitted where.
The broader telehealth landscape
The pandemic upset many assumptions about telehealth, turning it into a commonplace occurrence for all kinds of medical issues, where it was once a rarity.
But the end of the public health emergency has caused upheaval in the industry in many ways, as doctors, hospitals, clinicians and insurers recalibrate their practices.
KFF Health News reported recently that a mundane telemedicine appointment for a sinus infection resulted in a $660 bill for a New York woman.
Meanwhile, Amazon is offering a 24-7 video visit option through Amazon Clinic for garden-variety illnesses — pinkeye, medication refills and so on. “Depending on the state in which they are located, customers can connect via messaging or video call — all without an appointment or insurance,” the announcement said. “Through Amazon Clinic’s secure message portal or video call, the clinician will provide a recommended treatment plan, which may include a prescription.”
In an unrelated telemedicine issue, the Drug Enforcement Administration had put in place waivers allowing prescribing controlled substances via telemedicine, starting in March 2020, so that patients needing controlled substance prescriptions did not have to physically see their doctors.
In the spring of 2023, the D.E.A. said it was planning to end the telemedicine flexibilities but eventually, after an outcry, the D.E.A. agreed to extend the flexibilities through Dec. 31, 2024.
The decision had been eagerly anticipated by patients and doctors alike, given that the reinstatement of tougher regulations for prescribing by telemedicine promised to create difficulties for people accustomed to getting medications easily. The conversation about this topic also questioned why the Drug Enforcement Administration should be changing how people get their medications.
