Dial 'T' for Terrible Telehealth Laws

When Mike Abell's young son was diagnosed with a rare form of brain cancer, a phone call proved to be a vital lifeline.

Today, that phone call might be illegal—thanks to some strict limitations that New Jersey places on telemedicine calls with doctors in other states.

"As parents of a child with cancer, you're already fighting an impossible journey," says Abell. Those rules, meanwhile, are only "making it harder."

At the other end of that phone call was Dr. Shannon MacDonald, a specialist in proton radiation therapy at Massachusetts General Hospital in Boston. She treated Abell's son, Jun, who made a full recovery.

On one hand, modern medicine makes use of incredible, cutting-edge technology. On the other hand, public policy has forced the industry to remain stuck in an earlier technological age—before phones, before the internet, before Zoom—when a doctor had to be in the same room as a patient to provide treatment.

"Physicians are confused. Our ethical obligations are in direct contradiction with the law," says MacDonald. "Your ethical obligation is the right thing to do, but it's technically against the law and it could put your license at risk."

A doctor who treats a patient in New Jersey without holding an active New Jersey medical license could face three to five years in prison and a fine of up to $15,000. Separately, the unlicensed practice of telemedicine and telehealth in New Jersey carries a civil penalty of $10,000 for a first offense and $20,000 for subsequent offenses. 

And it's not just New Jersey. More than half the states in the country have "clear barriers to across-state-line" telehealth or lack a clear way for physicians to legally use telehealth to check-in with patients in another state, according to a report published earlier this year by the Cicero Institute and the Reason Foundation (which publishes this website).

Now, both Abell and MacDonald are challenging that New Jersey law with the help of the Pacific Legal Foundation, a libertarian law firm.

"Tomorrow, Dr. McDonald could get a phone call from somebody in New Jersey saying 'Hey, I was referred to you. I have this problem,'" says Caleb Trotter, an attorney with the Pacific Legal Foundation. In that moment, MacDonald would have to decide whether to break the law or to put in the time and effort to first get licensed in New Jersey. Neither is ideal.

"And in the meantime, they're either going to have to wait for treatment," says Trotter. "I don't want to be dramatic, but it can be life and death."

Further reading for this week's episode:

"NJ Makes Cancer Treatment More Difficult for Children and Families," by Mike Abell, NJ.com

"It's Time To Permanently Suspend Regulatory Barriers to Telehealth," by J.D. Tuccile, Reason

"In 30 States, You Can't Use Telehealth With Out-of-State Doctors," by Caleb Trotter, Pacific Legal Foundation

"Rating States on Telehealth Best Practices," by Vittorio Nastasi, Reason Foundation

• Producer: Hunt Beaty

• Producer: Hunt Beaty

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