A patient with a dangerous bleeding disorder, along with an out-of-state specialist who treats cancer, is suing California in federal court over a state law that forbids doctors not licensed in the state from providing telehealth services to Californians.
Telehealth, or the remote provision of medical services, is a popular way for people to access medical care.
The new federal civil rights lawsuit challenges California’s telehealth law on constitutional grounds. It makes several claims, including that the state statute violates the dormant commerce clause in the U.S. Constitution, which notes that states may not enact laws that discriminate against or unduly burden interstate commerce.
The lawsuit also alleges that the state law hurts patients.
“Limiting access to medical specialists benefits no one,” said Caleb Trotter, an attorney at the Pacific Legal Foundation, a public interest law firm that represents the patient.
“There is no excuse for Californians—or anyone—to suffer simply because a member of their care team is in another state.”
Shellye Horowitz
One of the two plaintiffs, Shellye Horowitz, suffers from hemophilia A, a hereditary hemorrhagic disorder caused by a congenital deficit of plasma-clotting factor VIII that can cause prolonged, excessive bleeding either spontaneously or after trauma, according to the National Library of Medicine. About 33,000 people in the United States have the disease.Ms. Horowitz resides in a small town in northern coastal California, where there are no medical specialists nearby to treat her. According to the complaint, she has been using the services of a hemophilia specialist in Portland, Oregon, which requires a 14-hour round-trip drive from her home.
If she is forced to travel to Oregon every time she needs to consult with her specialist, she would have to decide to either return to not being properly cared for or disrupt her life by missing multiple days of work and spending considerable time and money to continue to receive proper care, according to the complaint.
The availability of telehealth makes it possible for Ms. Horowitz to be cared for by qualified specialists for her life-threatening condition while remaining at her home far away in another state.
Although Ms. Horowitz says her condition is currently well-controlled, she requires frequent consultations with her specialist in Oregon. Because of the rarity of her condition and the complicating factors that necessitate additional monitoring, she consults with the specialist as often as every month to manage her health.
Hemophilia A can make minor medical procedures, regular exercise, and day-to-day activities risky because any trauma encountered may trigger bleeding that is hard to control. Such incidents cannot be predicted and have to be dealt with urgently, so Ms. Horowitz needs to be able to access specialists on demand, according to the complaint. For example, she may need advice about intravenous infusions before everyday dental work, immunizations, or recreational endeavors such as dance lessons, according to the complaint.
Increasingly, her specialist in Oregon has been unwilling to speak with her over the telephone out of concern about being prosecuted under California’s telehealth licensure rule.
Section 2052 of the California Business and Professions Code forbids the unlicensed practice of medicine, which includes telehealth services. The offense can be charged as a felony or a misdemeanor.
Dr. Sean McBride
The other plaintiff, Dr. Sean McBride, a radiation oncologist at Memorial Sloan Kettering Cancer Center in New York City, wants to provide telehealth services in California.He uses telehealth to confer with his out-of-state patients and to discuss whether they should travel to New York City for advanced in-person treatments. He also uses telehealth to follow up with his patients upon their return home after treatment.
The board-certified Dr. McBride, who is licensed in New York but not California, is now forbidden from providing telehealth consultations in the Golden State. He wants to offer telehealth services in California but does not wish to be exposed to criminal liability that could jeopardize his medical license, according to the complaint.
California does not make it easy for out-of-state doctors to obtain licenses. California does not participate in the Interstate Medical Licensure Compact, nor does it have reciprocity agreements with other states.
Applying to be licensed as a physician in California requires a $674 application fee, a $1,176 licensing fee, a background check, and the submission of fingerprints and documentation. The Medical Board of California says the licensing process can take six months.
Maintaining licenses in multiple states significantly burdens medical providers, according to the complaint.
“Monitoring renewal dates and fees, state-specific continuing education requirements, and other state-specific requirements create administrative barriers that prevent them from seeking licensure in all states where they have patients,” it reads.
“For specialists like Dr. McBride, who have a national practice and only occasionally consult with or treat patients from California, the costs of being licensed in California are disproportionate to the volume of patients they would treat there.”
3 Claims
Mr. Trotter told The Epoch Times that the lawsuit is advancing three claims.There is the First Amendment claim, which states that the rights of patients and physicians to communicate with each other to share and receive information is violated by the licensure law, he said.
Then there are the “very closely related” claims under the dormant commerce clause and the privileges and immunities clause of the Constitution, which provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
The plaintiffs’ argument is that the state statute “is discriminating against and burdening the interstate practice of medicine across state lines through telehealth,” the attorney said.
“This is a very clear restriction on that, as well as the burdens here are very real for the patients—and there’s no corresponding public safety or public health rationale that’s sufficient to justify [the telehealth restrictions],” Mr. Trotter said.
The Medical Board of California refused to provide a comment.
“The Board declines to comment due to pending litigation,” spokesperson Alexandria Schembra told The Epoch Times by email.
