Fighting Deadly Telehealth Restrictions State-by-State:
- The COVID-19 pandemic prompted nearly every state to loosen or suspend telehealth restrictions so that doctors in one state can treat patients in another state without first getting licensed. This small, common-sense act unleashed a new era in patient care.
- Cancer care in particular benefited from the liberated rules. At the pandemic’s peak, cancer care was the most common condition addressed in interstate telehealth visits, fully accounting for 10% of these visits nationwide.
- With the pandemic behind us, illogical—and unconstitutional—telehealth restrictions are unfortunately back on the books in nearly every state. This includes New Jersey, where 9% of all telehealth visits were with out-of-state providers.
- Such telehealth rules never should have existed and the suspensions should have been made permanent. These restrictions make it illegal for pediatric cancer patients in New Jersey, like our clients Jun Abell and Hank Jennings, to receive follow-up care from their doctors in Massachusetts and Pennsylvania (read about their case below).
Case Story:
At the tender age of 18 months, Jun Abell was thrust into a battle for his life against pineoblastoma, a rare and aggressive brain tumor. After multiple surgeries and six rounds of chemotherapy, his local oncologist in his then-home state of New York referred him to Dr. Shannon MacDonald. Dr. MacDonald is a highly esteemed radiation oncologist at Massachusetts General Hospital in Boston, known for her expertise in pediatric oncology and proton therapy, a crucial tool in Jun’s treatment.
The Abell family relocated to Boston for two months while Jun underwent intense treatments. Jun’s treatment was a success and he has since resumed his childhood back home in New Jersey. Although he’s now years removed from both his treatment and Boston, he still has periodic check-ins with Dr. MacDonald via telehealth to ensure his tumor has not returned.
Unfortunately, the very lifeline that enabled Jun’s family to consult with Dr. MacDonald remotely, thus sparing them burdensome travel to Boston prior to treatment, was abruptly cut when New Jersey reinstated its telehealth rules that were suspended during COVID-19. The restrictions mandate physicians who engage in telehealth with New Jersey patients be licensed in New Jersey.
Dr. MacDonald, licensed in multiple states but not New Jersey, found herself barred from providing crucial telehealth consultations to patients like Jun. New Jersey families grappling with health issues that in-state doctors have no expertise in, or resources to treat, are now forced to choose between inconvenient and expensive out-of-state trips or forgoing potentially life-saving treatments and follow-up care altogether.
Furthermore, violating New Jersey’s telehealth restriction is punishable by criminal charges and hefty fines and can put the doctor’s medical license at risk.
But worst of all, children (and adults) will suffer. Limiting access to specialists in rare cancers benefits no one. Patients seek out highly accomplished medical specialists because of their expertise. Without telehealth, these patients are less likely to receive treatment from those specialists.
New Jersey’s telehealth restrictions are not just wrong, they’re also unconstitutional. Placing undue burdens on both out-of-state physicians and New Jersey patients that far outweigh any benefits violates the Constitution’s Dormant Commerce Clause and Privileges and Immunities Clause. Also, 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. Finally, parents have a fundamental right to direct the lawful medical care of their children. By preventing parents from accessing vital care through telehealth, New Jersey’s license requirement violates the Fourteenth Amendment’s Due Process Clause.
University of Pittsburgh neurosurgeon Dr. Paul Gardner is also deeply concerned about New Jersey’s return to unconstitutional, outdated telehealth restrictions. He specializes in skull base surgery and helped develop endoscopic endonasal surgery. Although he is licensed in Pennsylvania, roughly 25% of Dr. Gardner’s patients, many of whom live in other states, took advantage of telehealth in recent years.
Hank Jennings, meanwhile, is a college student from New Jersey. His freshman year of college he was diagnosed with giant craniocervical junction chordoma. After consulting with Dr. MacDonald, Hank and his mother chose to travel to Pittsburgh for treatment. Now a college student, Hank still has regular follow-up calls with specialists in Pennsylvania. New Jersey’s telehealth restrictions make his follow-up calls from home illegal.
Represented by Pacific Legal Foundation free of charge, Drs. MacDonald and Gardner and patients Jun and Hank are challenging New Jersey’s licensing law that threatens the lives of children—and adults—suffering from rare cancers and the rights of qualified specialists to treat them.
What’s At Stake?
- The government cannot use licensing requirements to prevent children (and adults) from accessing specialty medical care that their local doctors have no expertise in, or resources to provide. Nor can the government impede the exchange of information between patients and their doctors.
- 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.
