The Wall Street Journal: The Doctor Is In, but the Patient Is Out of State

February 02, 2024 | By SHANNON MACDONALD

State emergency orders during the Covid pandemic made it possible for patients in one state to consult with doctors in another via telephone and internet. Those orders have now expired, however, and that flexibility has ended. With limited exceptions, doctors can practice medicine only in states where they are licensed and where their patients are physically present.

In 2009, I began treating a 9-year-old from New Jersey who had been diagnosed with a brain tumor, medulloblastoma. His oncologists felt he needed the treatment and expertise of a big-city hospital, so they referred him to me. Though the boy and his family traveled between states for appointments, he remained my patient at all times. I fielded his parents’ questions, discussed his imaging, and proposed new therapies when others failed. He received state-of-the-art treatment and benefited from the continuity of care across state lines (though he relapsed and died years later).

Instead of enlightening local governments about the benefits of telemedicine, the pandemic highlighted what physicians are forbidden to do. While I never hesitated to pick up the phone to call the boy’s parents and give them advice, I wouldn’t legally be able to do that now because New Jersey has decided that a simple phone call constitutes the practice of medicine. Giving medical advice to an out-of-state patient over the phone can put me at risk of losing my license, and, in states such as California and New Jersey, of criminal charges as well.

At the initiation of a telemedicine visit, doctors at some hospitals must now ask patients where they are, document the location in the medical chart, and end the visit if the patient is in another state. Hospital lawyers may even instruct physicians to avoid giving medical advice by phone to their in-state patients who are temporarily out of state for vacation or work, a scenario that could affect any of us. This is callous and in conflict with a physician’s ethical obligations.

In response, many patients drive to “telemedicine parking lots” in states where their physicians are licensed. Sick people are sitting in their cars and talking to their doctors using cellphones when they could be in the comfort of their homes.

At the outset of the pandemic, some state medical boards feared that telehealth would enable out-of-state doctors to poach patients from local physicians, especially in rural communities. State health authorities also didn’t want the hassle of pursuing malpractice claims across state lines. These concerns were unfounded. Fees and carve-outs—for example, restricting interstate telemedicine to specialty care or requiring referrals—could address these issues without undue limits on access, as could a requirement that physicians adhere to the laws of the state in which the patient is located.

The benefits of telemedicine outweigh any hypothetical concerns. Rural areas lack specialists, but rural residents need specialized healthcare as much as anyone. Distant specialists, accessible to rural residents by phone, shouldn’t be thought of as competitors to rural physicians but as resources capable of extending patients’ lives.

Without interstate telehealth, I’d have to become licensed in all the states where my patients live if I wanted to continue treating their rare childhood cancers or bone tumors. Because I believe strongly in the benefits of telehealth, I have obtained licenses in six states through the Interstate Medical Licensure Compact. Doing this took months, cost thousands of dollars, and still leaves me unable to care virtually for patients in 43 states. The process is so cumbersome that less than 1% of physicians use it.

Because of those burdens and my inability to care legally for my patients unless they travel to my states of licensure, with the help of the Pacific Legal Foundation I am suing the medical board in New Jersey to end its restrictions on access to specialty telehealth care. I am challenging New Jersey’s rules that only physicians licensed in-state may care for patients using telehealth. The Constitution gives Congress the authority to regulate interstate commerce and prohibits states from erecting barriers on their own. The First Amendment also prohibits states from singling out certain speech for limitation. Calls with patients before and after treatment are simply conversations.

Military doctors have long been able to practice medicine across state lines. In 2018 it became legal for sports-team doctors to practice medicine during out-of-state away games. If we can make a law that allows treatment across state lines for a National Football League player, can’t we consider it for a child with a brain tumor?

As a doctor, I want to provide the proper care for my patients no matter where they are, and I shouldn’t have to risk losing my license—or jail time—to do so. Because states have failed to modernize physician licensure, it’s time for the courts to weigh in.

Dr. MacDonald is a radiation oncologist at Mass General Brigham and an associate professor at Harvard Medical School.

This op-ed was originally published in The Wall Street Journal on January 19, 2024.