‘Across state lines’: Radiation oncologist takes on ‘preindustrial era’ telehealth laws
Shannon MacDonald, MD, never thought returning a patient’s phone call constituted “practicing medicine.”
“It’s your ethical obligation as a physician to call your patient back when they call you,” she said.
Yet, MacDonald and many other doctors across the country cannot freely answer a patient’s questions now without asking one of their own: “Where are you currently located?”
For most states, if the answer is not the same state the doctor is licensed in, then the conversation must end. MacDonald aims to change that.
MacDonald, a radiation oncologist at Massachusetts General Hospital and associate professor at Harvard Medical School, Paul Gardner, MD, chair of neurological surgery at the University of Pittsburgh School of Medicine, and three other plaintiffs filed a lawsuit in December challenging New Jersey’s telemedicine and telehealth licensure rule, which prohibits out-of-state doctors from “providing health care services to a patient” if they’re not licensed in the state, according to court documents.
“I feel constantly that my ethical obligations to my patients are in conflict with the legal framework that was put in place in an era, the preindustrial era, in the days of carrier pigeons and horses, when physician-patient interactions had to be in person,” MacDonald told Healio. “This may have made sense then, but it really makes no sense in modern times, when patients travel frequently between states and when distance disappears over the internet or phone.”
Telehealth and the pandemic
Telehealth use grew substantially during the COVID-19 pandemic.
The U.S. government and most states altered licensing laws so clinicians could treat patients through telehealth — no matter their location — to prevent spread of the disease.
Telemedicine increased 766% in the first 3 months of the pandemic, and telehealth claims rose from 0.1% in 2019 to roughly 5% by the end of 2021, according to a study in Primary Care.
In the first half of 2021, 422,547 patients with traditional Medicare had at least one out-of-state telemedicine visit, according to a JAMA Health Forum study in 2022 by Ateev Mehrotra, MD, MPH, professor of health care policy at Harvard, and colleagues. Of that study cohort, 57.2% of patients lived within 15 miles of a state border, 64.3% of visits involved primary or mental health clinicians, and 62.6% of patients had an in-person visit no earlier than March 2019.
Practitioners of all sorts saw benefits, but it significantly increased the scope of care for specialists like MacDonald, who is an expert in proton radiation and rare diseases, including pediatric cancer and sarcomas of the bone.
“A lot of my patients from out of state were able to easily follow-up with me,” MacDonald said.
“Some said they could be with their spouse, whereas they couldn’t when they flew to see me in follow-up because they couldn’t afford to get childcare and a plane ticket for their husband,” she added. “And during COVID, they loved their follow-ups by video because they sat there with their husband and if they got bad news, they had the support of a spouse or a family member.”
However, many of the states that relaxed their licensing laws reinstated them in the past 3 years. New Jersey is one of 30 states that limit interstate telemedicine and telehealth, per a press release from the Pacific Legal Foundation, which is representing MacDonald and her fellow plaintiffs in the lawsuit.
“It’s become very common for verification for appointments to come with a message stating for a virtual visit that you must be in state,” MacDonald said.
The lawsuit
The plaintiffs’ complaint focuses on the specialized care of a child, identified as “J.A.” in court documents, and Hank Jennings, a young adult from Bergen County, New Jersey.
Doctors diagnosed 18-month-old “J.A.” with pineoblastoma — a rare, malignant tumor in the brain — according to court documents.
The family lived in New York and used telemedicine to consult with numerous doctors around the country to determine “J.A.’s” best course of treatment.
After chemotherapy and surgery failed locally, the family visited MacDonald in Boston. “J.A.” had successful proton therapy.
“J.A.” and his family used telemedicine to discuss his frequent scans with MacDonald in the years that followed, but “J.A.,” now a teenager, cannot do that from New Jersey anymore. He must travel to Massachusetts for MacDonald to consult him on scans.
Doctors diagnosed Jennings with a large tumor at the base of his skull at 19 years old, according to court documents.
Jennings and his family used telemedicine to find care in Pittsburgh, where he underwent four surgeries to resect the chordoma. He had to leave school and his mother quit her job to care for Jennings.
The treatment worked, but Jennings, like “J.A.”, must receive follow-up care.
The financial, physical and time-costing burdens could be solved by having scans done locally with review over telemedicine, the plaintiffs’ legal petition noted.
The reinstatement of restrictive licensing laws creates a financial toxicity for patients and their families, according to MacDonald.
“I ended up speaking to a physician who treats metabolic disorders, and she states that she had a patient, a mother, who spent so much time driving her daughter back and forth across state lines for visits that she couldn’t hold down a full-time job, and when COVID happened, she could do so many of these simple visits by telemedicine,” MacDonald said. “She had so much free time, and now she’s angry that she has to go back to driving across state lines again and wasting so much time.”
Legal challenge
The plaintiffs’ attorneys are challenging the dormant commerce clause of the Constitution and the First and 14th Amendments.
The dormant commerce clause prevents states from “enacting laws that excessively burden interstate commerce in relation to its putative local benefits,” per court documents.
Carmel Shachar, JD, MPH, faculty director at the Health Law and Policy Clinic at Harvard, believes that will be the primary focus of the lawsuit.
“I think this is potentially their strongest argument to say there’s no real local benefit here,” Shachar, who has no affiliation with the case, told Healio. “You’re protecting New Jersey physicians, but you’re not really protecting patients who might want to get access to specialty-care physicians outside of New Jersey.”
Shachar led multiple work groups and panels on the topic of interstate telehealth last year, and joined a group of physicians, patients, academics and advocates in releasing a statement for licensure reform.
“The current physician licensure system often stands in the way of patients getting the care they need,” the statement reads.
“Our state-based licensure system often necessitates burdensome and costly travel, even when telehealth could offer equally effective care. ... Much of the care patients need occurs outside of examination rooms, such as addressing side effects, discussing new laboratory tests and scans, and managing dietary and physical treatment regimens. ... Unfortunately, if a physician or other care team member is not licensed in the state where their patient is located, they cannot receive this follow-up care.
“Patients have become victims of their geography. Two patients with the same disease equidistant from the same physician may have different access to care just because one lives across a state border.”
Exceptions already exist for out-of-state practice without licensure, specifically doctors and surgeons for traveling sports teams, as well as Veterans Affairs doctors.
“There are reports of people who drive across state lines to sit in a McDonald’s parking lot to have telehealth appointments with their physicians,” Shachar said. “I’ve heard of patients who drive to the hospital and sit in the lobby to have their telehealth appointment with a physician who’s working from home that day.”
The case against licensure reform
Shachar put forth three potential arguments against licensure reform.
First, many view in-person care as superior to that over a screen or phone.
“I’ve spoken to people — for example, eating disorder specialists — who say I can pick up a lot of subtle clues about how my patient is doing when I’m in the room with them that I can’t do over Zoom,” Shachar said.
However, a JAMA Network Open study in 2023 detailed many individuals stopped seeing their clinician altogether if they could not have the out-of-state visit virtually (adjusted OR = 0.76; 95% CI, 0.72-0.8).
In the study, Eric Bressman, MD, MSHP, assistant professor at University of Pennsylvania, and colleagues compared out-of-state telemedicine relationships between three states where licensure waivers expired and five where they were still active.
“While critics might argue medical care is better when a patient is seen in person, there’s an argument that a telehealth visit is better than no visit at all, and often that is what happens,” MacDonald said. “There’s no visit at all because a patient can’t afford it, or doesn’t have the time, or can’t take time off from work, get childcare and travel to obtain a medical opinion from a doctor.”
There are a pair of potential legal arguments against licensure reform as well.
“If something goes wrong, how do we hold that physician accountable?” Shachar said.
“If they’re licensed in the state, it’s relatively straightforward because then it goes to the board of medicine in that state,” she added. “Let’s say they aren’t licensed, how does the patient in North Dakota hold a physician who is licensed in North Carolina responsible? Do they have to go to the North Carolina board of medicine? That’s kind of a burden on patients.”
The third argument is maintaining compliance with local laws, Shachar explained.
“I’m barred in multiple states — New York and Massachusetts — and New York law and Massachusetts law are different,” she said.
“There are differences in what is allowed in medical practice between states,” she continued. “It’s now kind of a hot topic when it comes to reproductive care and gender-affirming care especially, but how do you make sure the physicians are complying with the laws of the relevant state if they’re providing care outside of where they’re licensed.”
Licensure reform solutions
Shachar and colleagues proposed potential licensure reforms in their joint statement.
They believe there should be exceptions for follow-ups for patients who have already established relationships with out-of-state physicians, for screenings and assessments to determine if a patient may need out-of-state specialty care, for existing care plans that are implemented locally, and for care and services related to clinical trials.
They also proposed the Interstate Medical Telemedicine Registration Compact (IMTRC), which “would have a single application and serve as a one-stop application portal that would allow a physician to pursue a telehealth registration in multiple states,” the statement read. “Ideally, the IMTRC would have a small, fixed fee to support general processing costs along with an additional fee per state that could go back to the states. The IMLTC should be designed with the goal of faster, almost immediate, application processing.”
Currently, a doctor must pay $550 in fees, complete a background check and fingerprint (plus possibly more fees), and produce other documentation to get licensed in New Jersey, according to court documents. This takes an average of 3 months.
“I think I saw an estimate saying if you want to get licensed in all 50 states — and this was prepandemic — you would probably be spending something like $90,000 in licensing fees, and that’s not even including all the compliance,” Shachar said.
Who else benefits from reform?
The lawsuit focuses on specialty care, but there are other applications to licensure reform.
Both MacDonald and Shachar highlighted psychiatry, particularly college students who travel out of state.
“I grew up in New York and I went to college in Massachusetts, so if I had a psychiatrist in New York, I would lose that care connection in school, and if I had a psychiatrist in Massachusetts, I would lose that care connection when I went home,” Shachar said. “And we know this age group is really vulnerable. This is an age group whose mental health has been hit really hard by the pandemic, and it’s still kind of working to recover.”
MacDonald emphasized licensure reform would likely not have much impact on primary care.
“We know that telemedicine is good for some visits, but you can’t deliver most treatments via telemedicine,” MacDonald said. “You’re really just giving advice or an opinion and not treating a patient.”
For more information:
Shannon MacDonald, MD, can be reached at smacdonald@mgh.harvard.edu.
Carmel Shachar, JD, MPH, can be reached at cshachar@law.harvard.edu.
References:
- Bressman E, et al. JAMA Netw Open. 2023;doi:10.1001/jamanetworkopen.2023.43697.
- Consensus Statement for Telehealth Licensure Reforms. Available at: https://chlpi.org/wp-content/uploads/2023/11/Consensus-statement-Circulation-AMH_FINAL.pdf. Accessed Jan. 17, 2024.
- Mehrota A, et al. JAMA Health Forum. 2022:doi:10/1001/jamahealthforum/2022.3013.
- New lawsuit battles telehealth laws that put sick children at risk (press release). Available at: https://pacificlegal.org/press-release/new-lawsuit-battles-telehealth-laws-that-put-sick-children-at-risk/. Published Dec. 13, 2023. Accessed Jan. 17, 2024.
- Shaver J. Prim Care. 2022;doi:10.1016/j.pop.2022.04.002.
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