A medical doctor is suing New Jersey in federal court over its laws that limit telehealth services and prevent patients from accessing specialty cancer care that their local doctors lack the expertise to treat.
Telehealth—also known as telemedicine, which has become increasingly popular in recent years—is the provision of healthcare remotely by way of electronic information and telecommunication technologies.
But the medical establishment tightly regulates, and in some states forbids, telehealth.
The COVID-19 pandemic nudged nearly every state to loosen or suspend telehealth restrictions so that doctors in one state could treat patients in another state without first getting licensed in the new state. This small, common-sense act “unleashed a new era in patient care,” according to the Pacific Legal Foundation (PLF), which is representing plaintiffs in the new lawsuit.
PLF is a public interest law firm based in Sacramento, California, that challenges government overreach.
Cancer care in particular benefited from the relaxed rules. At the pandemic’s height, cancer care was the most common condition dealt with in interstate telehealth visits, fully accounting for 10 percent of these visits nationwide.
With the pandemic in the past, these “illogical” and “unconstitutional” telehealth restrictions are back on the law books of nearly every state, including New Jersey, where 9 percent of all telehealth visits were with out-of-state providers, PLF says.
PLF says that such telehealth rules should never have existed and that the suspensions should have been made permanent. These restrictions make it illegal for pediatric cancer patients in New Jersey, like two other PLF clients, to receive follow-up care from their doctors in Massachusetts and Pennsylvania.
The lead plaintiff is Dr. Shannon MacDonald, a radiation oncologist at Harvard’s Massachusetts General Hospital who specializes in rare pediatric cancers. Because Dr. MacDonald is licensed in multiple states but not New Jersey, she found herself barred from providing telehealth consultations and follow-ups to patients, as she had done during the COVID-19 pandemic, when the state’s COVID-19-era temporary license program ended earlier this year.
New Jersey families grappling with rare cancers are now forced to choose between inconvenient and expensive out-of-state trips or leaving their trusted specialty oncologist. In addition to fines, New Jersey imposes criminal penalties on doctors who continue to care for their patients via telehealth, according to PLF.
Plaintiff J.A. was 18 months old when he was diagnosed with pineoblastoma, a rare and aggressive kind of brain tumor, according to the complaint.
His father contacted every pediatric oncologist in the country he could find. The family ultimately decided to undergo treatment at their then-home hospital in New York. After treatment was underway, his doctors referred him to Dr. MacDonald because of her nationally recognized expertise in proton therapy, a specialized radiation treatment not then available in New York.
Dr. MacDonald remotely viewed J.A.’s scans and the family decided to have J.A. undergo successful treatment in Boston. But J.A. must continue to have scans once a year for the rest of his life to verify the cancer has not returned.
Without telemedicine, patients like J.A. suffering from rare cancers and diseases must either forego lifesaving treatment or experience inconvenience by traveling out of state every time an appointment with a specialist like Dr. MacDonald is needed.
“Telemedicine allows patients and their families, especially in situations where time is of the essence, to consult quickly and affordably with these unique specialists around the country,” the complaint states.
But New Jersey law makes such remote consultations illegal unless the out-of-state medical provider first obtains a New Jersey medical license.
The complaint argues that under the U.S. Constitution, the government is not allowed to “erect such high barriers to the interstate practice of specialized medicine without significant local benefits.”
Moreover, the First Amendment prevents the government from restricting conversations between patients and doctors based on the content of those discussions, and the Fourteenth Amendment’s Due Process Clause forbids the government from restricting the ability of parents to direct the medical care of their children.
Defendant Otto Sabando is being sued in his official capacity as president of the New Jersey State Board of Medical Examiners.
PLF attorney Caleb Trotter explained the thinking behind the new lawsuit.
“The government cannot use licensing requirements to prevent children—and adults—from accessing specialty medical care that their local doctors neither have the expertise in, nor the resources to provide,” the lawyer said.
“Limiting access to medical specialists benefits no one. It is wrong for the government to place undue burdens on both out-of-state physicians and in-state patients that far outweigh any benefits.”
The rules that New Jersey has in place “burden that interstate practice of medicine, and there’s not any sufficient corresponding benefit,” Mr. Trotter said in an interview.
“When we’re talking about specialty care where you’ve got to go out of the state to seek a specialist who has the expertise and the resources to handle your rare cancer or disease, that care just isn’t available in your state. So there’s really no corresponding benefits,” he said.
“I don’t think there is anybody that’s going to look at this and say these rules make sense,” Mr. Trotter said.
“I think everyone will agree that they are outdated from an era before COVID and telehealth and telemedicine. I really think it was just outdated rules that the state of New Jersey as well as most other states have not updated yet.
“And so from that standpoint, I’m very confident that the public, that lawmakers, policymakers, are going to agree that changes need to be made. And maybe that will happen before the case is resolved in court.”
Dr. MacDonald told The Epoch Times that she sees a large number of patients with rare pediatric cancers that might benefit from being treated in Boston where she is based.
“A lot of patients have rare diseases that cannot be treated in their state. And I think it is due to dated laws that don’t allow for telephone calls or video visits with these patients across state lines, because licensing is by state rather than federally.”
Nowadays, “if you’re not licensed in the state where the patient is present, you’re doing something illegal, putting yourself at risk of losing your license.”
Medical specialists should be afforded legal protection when practicing out-of-state, much like physicians who travel with professional sports teams are, she said, referring to the federal Sports Medicine Licensure Clarity Act of 2018.
The act allows sports medicine professionals to treat an athlete across state lines without fearing monetary loss or losing the right to practice medicine.
The New England Patriots football team’s “physicians can travel with them and offer treatment when they’re [outside their home state of Massachusetts],” she said.
“So what we’re talking about is just allowing for something that can be done over the phone or video, which would typically be medical advice or diagnostic advice or telling a patient whether they would benefit from a certain therapy or not.”
The Epoch Times has reached out to the New Jersey Board of Medical Examiners for comment.
