From Epstein Becker Green, by Amy Cooperstein, Amy Lerman, and Kyla Portnoy:
The surge in telehealth services due to COVID-19 has highlighted regulatory challenges faced by providers. These regulations, which vary by state, govern aspects such as who can provide telehealth services, what services can be provided, and where providers must be located. A common requirement is that providers must be licensed in the state where the patient resides.
In December 2023, a lawsuit was filed challenging New Jersey’s reinstated telehealth rules, specifically the requirement for providers to be licensed in New Jersey to provide telehealth services to residents. The plaintiffs, including families requiring care from out-of-state providers and doctors licensed in other states, argue that the regulation violates the Commerce Clause, Dormant Commerce Clause, Privileges and Immunities Clause, First Amendment, and Due Process Clause.
This case highlights a broader issue of restrictive licensure requirements that can hinder providers’ ability to offer proper care. The process of obtaining separate licenses for each state is time-consuming, costly, and can discourage expansion of telehealth services. Efforts to simplify the licensure process, such as the Interstate Medical Licensure Compact and the Nurse Licensure Compact, have been limited in their effectiveness.
The outcome of the MacDonald case could have significant implications for telehealth restrictions and could influence future regulation and access to telehealth services.