During a presentation last week on telehealth policy trends, Mei Kwong, J.D., executive director of the Center for Connected Health Policy (CCHP), highlighted a lawsuit recently filed in New Jersey questioning the constitutionality of state telehealth licensing requirements.
“They are making this an argument about the U.S. Constitution, not the state constitution, so that elevates it into a federal case,” said Kwong who leads CCHP, a federally designated National Telehealth Policy Resource Center. “They are arguing that the feds can actually have an influence on state licensure via the Commerce Clause. This is definitely something to keep your eye on. This could take a bit of time, but it is definitely a big policy development.”
Kwong described how during the height of the pandemic, many states loosened or suspended restrictions so that doctors in one state could treat patients in another state via telehealth without first getting licensed in that state. But when the pandemic ebbed, those rules were reinstated. Now patients in New Jersey are suing the state, arguing these rules are blocking them from receiving follow-up care from their doctors in Massachusetts and Pennsylvania.
The Pacific Legal Foundation (PLF), which usually champions conservative or libertarian causes, has filed the suit in the U.S. District Court in New Jersey against the New Jersey State Board of Medical Examiners on behalf of two out-of-state physicians and their patients.
Here is a summary of the story behind the lawsuit from PLF’s website:
At 18 months, Jun Abell was diagnosed with 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 Shannon MacDonald, M.D., a radiation oncologist at Massachusetts General Hospital in Boston, known for her expertise in pediatric oncology and proton therapy. 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,” PLF says. 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.
Violating New Jersey’s telehealth restriction is punishable by criminal charges and hefty fines and can put the doctor’s medical license at risk. The lawsuit argues that 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.”
PLF argues that placing undue burdens on both out-of-state physicians and New Jersey patients far outweigh any benefits and violates the Constitution’s Dormant Commerce Clause and Privileges and Immunities Clause. Also, they argue, 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,” the lawsuit states.
It also notes that during the pandemic, 9 percent of all telehealth visits in New Jersey were with out-of-state providers.
PLF’s summary also describes another litigant. University of Pittsburgh neurosurgeon Paul Gardner, M.D., specializes in skull base surgery and helped develop endoscopic endonasal surgery. Although he is licensed in Pennsylvania, roughly 25 percent 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.
Drs. MacDonald and Gardner and patients Jun and Hank are challenging New Jersey’s licensing law. The New Jersey State Board of Medical Examiners has yet to file its response.