California's Telemedicine Restrictions Are Forcing Rare Disease Patients To Travel Out of State for Care
A new lawsuit argues the state's requirement that doctors must be licensed in California to do remote consultations with patients there is unconstitutional.
To receive treatment and consultations for her hemophilia A, a rare bleeding disorder, Shellye Horowitz will periodically travel from her home in rural northern California to a hemophilia clinic associated with the Oregon Health & Science University (OHSU) Hospital in Portland, Oregon.
California's telemedicine regulations require that doctors who treat or consult with patients in California must also be licensed in California. Since the specialists Horowitz sees aren't licensed in California, she's frequently having to make the 14-hour round trip up to Portland for appointments that could have easily been done remotely.
"I have had so far three appointments at my hemophilia treatment center where when the time I was available to travel to Portland, they only had phone appointments available," says Horowitz. "I've had to physically travel to Portland to sit in a hotel with worse internet than my home to have telehealth appointments."
Telemedicine experienced a boom during COVID, when states waived restrictions on remote medical appointments via emergency orders as part of their social distancing regimes. Many have since passed permanent policy changes allowing out-of-state doctors to offer their services to patients.
But California is far behind the curve, as a January report from the Reason Foundation (which publishes this website) makes clear.
California is one of 27 states that does not allow doctors and other medical professionals outside the state to treat or consult with patients. It also has not joined the 40-state Interstate Medical Licensure Compact, which allows doctors to apply for licensure in multiple states at once.
Gov. Gavin Newsom's telemedicine emergency order during COVID offered only minor regulatory relief to patient privacy and data security regulations. With the state of emergency now gone, that temporary deregulation is gone too.
In 2023, the state adopted a new law allowing doctors licensed in other states to provide telehealth services, but only in "emergency" circumstances where a patient was expected to live for only a few months and they hadn't been accepted in clinical trials closer to their home.
California's licensure requirements pose particular problems for patients, like Horowitz, who have rare conditions in need of specialized, frequent care.
They also pose a major roadblock to specialized clinics that seek to treat a small number of patients spread across the country. The time and expense of acquiring and maintaining licensure in California, or other equally restrictive states, might not be worth it if there's only a handful of patients there seeking their care.
This past week Horowitz and Sean McBride, a radiation oncologist at Memorial Sloan Kettering Cancer Center in New York, sued the head of California's medical licensing board, Randy Hawkins.
Their lawsuit was filed in U.S. District Court for the Eastern District of California.
The lawsuit argues that California's restrictions on interstate medical practice without any purported local benefit violate the U.S. Constitution's "Dormant Commerce Clause," which prohibits states from "enacting laws that discriminate against interstate commerce or excessively burden interstate commerce in relation to any putative local benefits."
"Licensure requirements are substantively identical from state to state. Treating cancer in California is the same as treating cancer in Vermont," says Caleb Trotter, an attorney with the Pacific Legal Foundation, which is representing Horowitz and McBride.
California's discrimination against doctors licensed out of state doesn't do anything to improve the quality of medical care, says Trotter. Nor did the COVID-era rollback of such licensure requirements in other states produce any harms for patients.
Their lawsuit challenges only California's restrictions on doctors licensed out-of-state from consulting and following up with patients. It leaves unchallenged licensure requirements for out-of-state doctors treating patients (say via remote talk therapy sessions) or prescribing medicine.
That California's licensure restrictions apply to mere communication between doctors and patients violates the First Amendment's free speech protections as well, argues the lawsuit.
The ability to have follow-up consultations with doctors and medical professionals is especially important for Horowitz. California's restrictions leave her uncertain whether she could even consult with a nurse at her Oregon clinic if she were having a bleeding incident.
"It's my body and my healthcare," she says. "I should be able to choose to go to a provider I trust. I don't like the fact that my state is limiting my ability to connect with and follow up with a provider of my choice."
