What you need to know about the state of telemedicine

Regulations and state licensure requirements make it difficult for physicians to treat out-of-state patients

• Image Jacob Wackerhausen

Shannon McDonald, an oncologist at Harvard Medical School and Massachusetts General Hospital, once had to tell a patient, sitting in a coffee shop parking lot with her kids in the backseat, that she had an aggressive brain tumor.

Because of laws regulating telehealth, McDonald’s patient needed to drive into Massachusetts before talking with her doctor. It’s just one example of the obstacles patients need to overcome to receive treatment from their physicians.

“Doctors are potentially breaking the law by practicing medicine and calling our patients who are out of state for follow-ups or consults,” McDonald said at a recent event at the Johns Hopkins University Bloomberg Center.

State-by-state telemedicine limitations, including regulations and state licensure directives, are creating a logjam of access complications for patients with the greatest need. When patients seek virtual care from some of the nation’s top specialists, their geographic locations, restrictions imposed by insurance plans, or their provider’s license location could make or break a potential treatment plan.

Here’s a look at the state of telemedicine and recommendations from providers and patients to strengthen it:

1. COVID created an opportunity for change, licensure upended that

During the peak of the COVID-19 pandemic, telehealth regulations were relaxed so patients and doctors could social distance while continuing critical care. The shift virtually revolutionized the patient care system, connecting patients to physicians nationwide during a time of health care shortages.

“Telehealth is an important modality for what a 21st century model of care looks like and meets the needs of all the people who need to be connected in care in a cost-effective and care-coordinated manner,” said Carmel Shachar, faculty director of the Health Law and Policy Clinic at Harvard’s Center for Health Law and Policy Innovation.

But recently, medical licensure regimens have returned to the status quo, meaning patients need to be physically in a state where clinical physicians are licensed to practice to receive care. Physicians can try to work around the ongoing challenges of cross-state care by pursuing additional licenses, which can be costly and timely; try to find an exception to state licensing requirements, which may not exist or come with compliance challenges; or run significant legal risks if they choose to provide care regardless of licensure.

“COVID put a spotlight on the fact we were practicing medicine across state lines; now I’m feeling in conflict with my ethical obligations to my patients and following the rules,” McDonald noted.

2. A “patchwork” health care system leads to “illogical” processes

Those telehealth regulations mean providers are stuck between their oath to “do no harm” and the risk of legal ramifications.

“The telehealth visit occurs where the patient sits. It’s great, it makes logical sense, …but now it creates the struggle where it means that a provider might want to work with a patient, but an accident of geography means they can’t utilize telehealth,” said Helen Hughes, medical director of Johns Hopkins Office of Telemedicine. “You see situations where physicians are asking patients to drive and park in a McDonald’s parking lot across state lines to get sensitive information.”

Brian Hasselfeld, senior medical director of digital health and innovation at Johns Hopkins Medicine, described the status of state-by-state licensure-enforced medicine as a “patchwork” approach to health care, saying it’s forcing providers to “put an impossible question to our patients” when clinicians attempt to schedule follow up visits 6-9 months in advance. “Licensure is livelihood,” he said. “There isn’t as much system risk as there is a risk to the individual practicing their trade.”

3. Potential fixes to a complex problem

Legal minds and providers alike point to three potential solutions for ongoing challenges that the health care system faces with telemedicine:

• Challenges in the courts: Clinicians like McDonald have lent their support to lawsuits challenging the obstructive use of licensure–making the case that they violate the dormant commerce clause, which prevents states from discriminating against interstate commerce or unduly burdening it. David Peloquin, a partner at Ropes and Gray LLP, noted that there is no uniform definition of what it means to practice medicine and those definitions are not consistent across all states. “Litigation can be helpful for change,” he said, “but unless you have some sort of regulatory framework, other parts of the law are often going to tie things up.”

• Sports Medicine Act: Physicians speaking at the Bloomberg Center also highlighted the Sports Medicine Act, which provides protections for certain sports medicine professionals and allows them to treat injured athletes across state lines. Hasselfeld noted that if expanded beyond sports medicine, it would be an area for specific use cases that are “extra important for cross-state practice of medicine,” including high risk patients and in pediatrics.

• Uniform Telehealth Act: Providers and litigators appear unanimous in support of enacting a nationwide strategy in the form of implementing the Uniform Telehealth Act–a law that allows licensed and certified physicians to practice telemedicine across state lines. The act was passed by the Uniform Law Commission in 2022 but has only been enacted by state legislatures in two states since then. Providers are now urging lawmakers on Capitol Hill to make it federal policy. “We’re hearing frequently from patients begging to see their established providers across state lines,” Hughes said. “We don’t have time to wait for state-by-state solutions.”